Episode 8 | Asymmetrical Lawfare

Our hosts, law professor Ilan Wurman and Kathryn Johnson, are joined by conservative law students at the podcast’s first ever live taping, at ASU. The hosts tackle one of the most important and controversial legal issues of the day: the asymmetrical lawfare and “barfare” against Trump and Republicans. Does the left play by the rule of law? Do they like the rule of law for themselves, but not for others? Should conservatives start playing by their rules? In terms of legal doctrine, should they embrace an aggressive version of substantive of due process? Common good constitutionalism? Our hosts tackle the recent Korean Spa case out of the Ninth Circuit with the now famous “swinging d—-“ reference. Finally, they talk more about birthright citizenship and take questions from the audience. 

Transcript

SPEAKER_03 0:00

Welcome to our first ever live taping of Rationally Based, a podcast about law and politics on the edge. I'm your host, Elon Werman, a law professor at the University at Minnesota Law School.

SPEAKER_07 0:09

And I'm Catherine Johnson, and I'm a center of the American Experiment in Minnesota.

SPEAKER_03 0:13

Catherine and I are at Arizona State University at the law school here, and we're joined here by three of the nation's um most conservative law students, or at least they are law students at a conservative law student conference. And so we thought this would be a fantastic opportunity to hear what students are thinking, to get them to ask us questions about what we are thinking. And so we're very, very delighted to be here. And we'll make sure to leave time for the audience uh to hear from you as well. But before all of that, Catherine, what's on deck for today?

SPEAKER_07 0:40

Um well we've got a number of exciting topics. First of all, do Democrats play by the same rules as Republicans? They're certainly abusing state bars to go after Trump administration lawyers, as we've seen recently. Are we still originalists now? Should the right use the courts for more instrumental reasons? Is the left playing by different rules? And should we be? Third, Elon testified in Congress earlier this week about birthright citizenship. So we'll debrief and we'll ask the students what the debate about this is like on their campuses. And finally, we will take questions from the audience.

SPEAKER_03 1:12

All right, let's dive in. So first, some introductions. We are here with Morgan, Matthew, and David, co-hosting with us today. You want to introduce yourselves?

SPEAKER_06 1:32

Sure. So I'm Morgan Larson. I am here at Arizona State, the host school for uh this weekend's symposium.

SPEAKER_04 1:41

I'm Matthew Holmes, I'm a 3L at the University of Michigan. He said three of the most conservative law students in America. I am from California, so I would say I'm about as conservative as a Californian can get.

SPEAKER_01 1:51

You're out of show. And hello, thank you for having me. I'm David Hongs. I'm a 3L at Yale Law School, and I am from New York, so I suppose I should give the same caveat there.

SPEAKER_03 2:03

We really got the wrong students involved, didn't we? Um so I will say that the uh organization uh that is hosting today's conference and this weekend's conference is the Federalist Society, a really, really terrific organization. I was a member of the Federal Society, I was actually the co-chair of the symposium that we are having this weekend, back when I was a law student at Stanford University. So this is a really, really fantastic conference. And all that is my way, uh my lead up for saying that uh everything we say here has nothing whatsoever to do with the Federalist Society. This is not a Federalist Society event, this is not a Federalist Society podcast, and I would be surprised if half of what I say is not denounced by the Federal Society uh tomorrow. So that is not my uh objective, but just want to make clear that uh uh this uh podcast is uh today's episode, and these students speak in their own capacities, and of course we speak in our own capacity. Okay, so what I wanted to start with, should we start with the rule of law for the me? So the notary So I got into a little trouble, not surprising, um, on my X feed after the notary and the College of Republicans posted some tweet, um, or I guess we're we call them a post now after the tariff decision striking down President Trump's tariffs under AIPA. Uh and uh, you know, um I reposted not the original tweet, which we will read to you the original tweet. It wasn't the best tweet ever, uh, but the second tweet actually was quite interesting. And uh I thought it might be worth saying, hey, this is actually quite interesting. And apparently I got in a lot of trouble for saying that. But I I don't know, I kind of want to defend myself and get uh uh understand what other people are thinking about this. Uh so for those on the YouTube video, we will put this up for you. Unfortunately, for those here in the audience who are just gonna have to listen, um, or you can fire up your X feeds and uh be surprised if you haven't seen these tweets. So let's start with the first one. Do we have that tweet here in front of you?

SPEAKER_07 3:49

Yeah, so for the last four decades, this is from the Notre Dame College Republicans, American manuf manufacturing has been systematically dismantled, millions have lost their jobs and livelihoods, critical supply chains have moved to hostile countries, hardware productivity growth has collapsed, and the consumption has been increasingly financed by mortgaging off the future to foreigners. He who saves his country violates no law. We urge President Trump to defy the Supreme Court's lawless, disgusting ruling today. Again, yeah, referencing that tariff ruling.

SPEAKER_03 4:16

Right. So this was after the tariff uh decision. I do remind me to talk about that. He who saves his country violates no law. There's actually something super interesting here. I love that. That I well, you know, I'm Lincoln and Jefferson said something similar, but not quite what they are saying, and so that's something that I would love to unpack. But look, as I said, I don't love this uh initial post. And I'm not sure that the um the occasion, the tariff decision was the occasion to say something like that. But let's talk about the next one, um, which was a defense uh of their original post. So what did they say there?

SPEAKER_07 4:48

For those getting mad over this, no, we're not against the rule of law in principle, but we acknowledge the obvious fact that it's been dead for decades. Democrats imported 10 million illegal immigrants, locked people in their homes, discriminated against them for not taking an experimental vaccine, and a host of other lawless actions that no court, legal procedure, or concern for principles ever stopped. They get elected to statewide office or to local DA positions and decide they're going to unilaterally refuse to enforce laws. They use the Supreme Court to create fictional rights to abortion, homosexuality, and DEI with not even the most cursory preoccupation with the American tradition. Insisting on legalism with leftists is like playing a soccer game with your feet while the other team scores every goal with their hands. The constitutional order requires a set of assumptions, practices, and norms to properly exist. The founders emphasize this repeatedly. Those norms are dead. The left killed them, and there's no going back.

SPEAKER_03 5:39

Okay. So I'll just sort of summarize my just asking questions tweet, um, which I uh again, when I reposted this, I was just guessing questions, right? Is there some legitimate basis uh for what they are doing? And let me suggest that there actually might be. Again, not the original tweet, I do want to talk about that, but but just this tweet. So there is something to do here, uh, or a problem with asymmetry. Uh it's a rule of law asymmetry. So they talk about that um the Biden administration, through a failure to execute the law, through an abdication of the presidential oath and the duty to ensure that the laws are faithfully executed, allowed into this country 10 million persons who did not come lawfully. They just opened up the borders, they did not enforce the laws, and now the left's view, after having done that, is each one of these 10 million individuals gets years and years of proceedings in executive branch tribunals and uh in the courts of appeal before they could be removed. There does something to be, seem to be something quite asymmetric about that. Uh another example here, they say, okay, they get elected to state office and the local DA positions and decide that they're just not going to enforce certain laws. I actually have a lot of personal experience with this. As someone who tries to get cities to occasionally clean up public homeless encampments, the state is not enforcing the laws against public homeless encampment. The state is not, and the local officials are not enforcing laws against drug addicted individuals, they're not enforcing laws against repeat violent offenders that go on to uh you know end up committing tons of murders. But if you you know misstate something accidentally on your taxes, if you um, you know, um mess up on a license application or whatever it is, they'll make sure to come after you. If you don't, if you go out to the beach alone during COVID, oh, they'll arrest you for that. But they won't enforce all these other fundamental foundational laws necessaries for a functioning and free society. And then of course there's something about the Supreme Court, the this abortion, same-sex marriage, DEI, these substantive due process role, DEI may be not an example of that, but the substantive due process rights, these unwritten rights that the left gets to make up. Should the right not get to make up their own rights? There is an asymmetry here. And something that's happened since that I know we want to talk about, is lawfare and state bar fair. The these filings of criminal actions, state bar complaints against Republican uh officials. They tried to destroy their lives over total reasonable disagreements, reasonable policy disagreements. The right doesn't play that game, and even if it wanted to play that game, it would be much more difficult because the state bar is controlled by the left and so on. Okay, so that was not X-worthy in a sense. That wasn't 200. How many characters do we get these days? 280?

unknown 8:13

No.

SPEAKER_03 8:13

280 before? I'm all right. There you shouldn't be on social media, period. You should be studying uh for your exams. Uh but that's uh, you know, there seems to be some basis for at least this tweet. Okay, again, putting aside the question of the original tweet. So let me stop there and see any other reactions, any anything someone wants to say, someone wants to defend them, not defend them, half-defend them, quasi-defend them. What do you guys think?

SPEAKER_01 8:37

Well, I also had a little bit of a different reaction to each of the two tweets. I agree with the first one tweet post, whatever you want to call it, that defying the Supreme Court over the tariff ruling, even if I disagree with it, isn't the best idea. I think the second tweet I could also find things to quibble with, but I do think it reflects a general sentiment that's fairly widespread among conservative law students, which is something to the effect of there are major problems with the rule of law, and the way we've been approaching it isn't working. The post mentioned the lack of enforcement of certain laws, immigration laws, criminal laws. You could also add to that, I think, over enforcement and weaponization, as you were getting at. Some examples of that. We had, of course, the unprecedented prosecution of a former president and chief political rival, which the Supreme Court put a stop to, the attempt to take him off the ballot, which the Supreme Court also stopped, some uh, shall we say, creative theories of criminal liability to enhance the sentences of January 6th defendants, which the Supreme Court also stopped. So I think two takeaways from that, and then I'll turn it back. I'm curious what everyone else thinks. First is that the Supreme Court has been very helpful in combating this trend of lawfare, and that's one reason why I wouldn't want to tear down that institution over the tariffs ruling, even if I disagree. The second takeaway is that I think the general sentiment driving this post is that everybody wants to restore the rule of law. That should be all of our goals, but we can't do that if we're simply doggedly following norms that have already been thrown out the window years before. One example of a model that you might want to follow from the first Trump administration, you might recall going into that, Democrat senators had gotten rid of the filibuster, the 60-vote rule, for lower court judicial nominees. And so the Republican Senate at that time had a choice when it came to Supreme Court nominees. It could do the same or it could stick by that norm. I think they were thinking probably when Democrats have power, they would scrap that rule and so let's get first mover advantaged, get justices Gorsuch, Kavanaugh, and Barrett on the bench. And I think that type of reasoning that we're not going to abide by norms that are not binding and not even symmetrically followed is a widespread sentiment.

SPEAKER_07 10:47

So what about when it comes to the filibuster now? What do you think?

SPEAKER_03 10:51

Like generally legislative, the legislative filibuster.

SPEAKER_07 10:53

The legislative filibuster. It's interesting. I think this whole conversation is taking place also in politics, aside from just, you know, in law. And I think the filibuster is a good example of that. You see Republicans split senators saying, you know, no, absolutely I don't believe in doing away with the filibuster, and other ones saying, the Democrats are gonna do it when they take power next anyway, so why don't we might as well do it first and be the people to take advantage of it first?

SPEAKER_03 11:15

And the reason we think that the Democrats will do it is because the only two Democrats in their way last time were Kirsten Cinema and Joe Manchin, and they're gone now. And who replaced them? We're actually here at Arizona. Um why am I uh who replaced Kirsten Cinema?

SPEAKER_06 11:29

Senator Kelly. Oh Mark Kelly and uh and Gallego.

SPEAKER_03 11:32

And Gallego. Ah, is Gallego gonna get rid of the filibuster? Is he yeah? Well, I mean the odds. Maybe any of the Arizonans in the audience uh have an answer to that question. But yeah, so should I guess throwing it back to anyone who wants to do it, but what about Catherine's point? Should we be the first mover on the filibuster? And plus what do you mean like getting rid of it entirely, or just like a talking filibuster? I guess what I'm saying.

SPEAKER_07 11:52

I think they're two different questions. And I think getting rid of it entirely is what I find more interesting. I mean, why don't they try the talking filibuster first, I guess? Uh I really don't understand that. It obviously is a bigger deal to get rid of the filibuster altogether, I think, and that's what Donald Trump has advocated for. Um but but what would your response be to someone who says, why not they're going to do it anyway?

SPEAKER_04 12:11

I I think this whole conversation comes down to a debate between pragmatism and being principled. And for me, and I think for a lot of conservatives, the reason why we have a principled approach to jurisprudence is because morally we believe that's the right thing to do. And so I agree that there is a first mover's advantage if you were to move on this filibuster thing, or if you were to take the courts and try to create a substantive due process right that conforms with conservative normative desires. But you gotta ask, well, one, the public is going to look at this, and I think in the long term, there's something to be said for them looking at this and seeing that one side is playing games, and if the other side decides to stick by their principled business, then maybe in the legislature we have more victories because of that. I think that fundamentally there's a different view of the law between the left and the right in where we see the legal battlefield. I think for the left, it's often in the courts. And I think that as original public media originalists, it's in the legislature, it's in the executive branch, it's in the political branches. And so, yes, there is an asymmetry. I 100% agree, but I think it's motivated by our view of where the battle should take place.

SPEAKER_03 13:13

So your view on the merits, you know, supposedly matters here. So the talking filibuster does have like a nice like normative reason for it, which it would make the Democrats, it would force them to actually explain the insane things they believe. And isn't that just like a good general policy to have? So we should we should advocate a talking filibuster to uh totally behind a veil of ignorance, right? We should do it. So maybe that in that sense isn't a great example, but getting rid of the filibuster entirely would be uh a bit more uh interesting to see what happens there. Okay, so let me go back to this uh lawfare point that I think David uh mentioned, this over enforcement point. And in particular, I want to talk about uh the state bar complaints. So I don't know if this happened like a week ago, two weeks ago, or it it just I I just r recently learned about it. Um but the state bar filed uh in D.C., so the DC is not a state, but you know, the DC state uh well, the DC Bar, uh which licenses lawyers to practice in D.C. So without your license in DC, you can't practice in D.C. Now you might be licensed in some other states, but presumably a lot of government lawyers who work in D.C. are licensed uh in D.C. They filed the bar complaint against Ed Martin, who is uh a DOJ official. Was he interim U.S. attorney? Does any any anybody remember? Right, but then the Senate wouldn't confirm him because he was too crazy?

SPEAKER_07 14:28

I don't know that part. I just Googled it.

SPEAKER_03 14:29

Okay. Uh I so I think he couldn't uh get an appointment because the Senate either wouldn't or couldn't uh confirm him, and then he became Trump's pardon attorney. And I don't know in what capacity he uh sent this letter, but he sent a letter to Georgetown University and basically said, Hey, I heard that you're still doing DEI. You're still discriminating against whites and Asians on the basis of race. Now, I want you to stop doing that. But he also said, I want you to stop teaching anything involved DEI, which is kind of interesting. So maybe there's like a First Amendment question there. But anyway, he said, until I get clarity about this, until I'm convinced that you are not um discriminating on the basis of race, uh, we will no longer hire anybody in our office from Georgetown University. And I don't know, is this lawful? Is it not lawful? A little bit unclear to me, actually. It's like a complicated doctrine involving what's called unconstitutional conditions. You know, there's no right to work in the government, you can condition it on certain reasonable and germane uh conditions. There are civil service laws that require that you treat people like neutrally and fairly when it comes to hiring and so forth. So maybe it's unlawful, but nobody's sued yet. No court has said that this is unlawful. And here swoops in the DC Bar, and the DC Bar Disciplinary Council basically filed a complaint seeking to discipline Ed Martin, possibly to revoke his license, though I don't know uh if uh that's the relief they requested, basically saying the following. So what what has Ed Martin done according to the DC Bar? Well, Ed Martin took an oath to the Constitution when he became a member of this bar, and you take it to and you have to keep maintaining your oath to the Constitution. And we, the disciplinary lawyers in the DC Bar, believe that you have violated the Constitution. Our understanding is that you have violated the Constitution. No court has said that you violated the Constitution. And so now you are at risk of losing your bar license and losing um your your license. There's another investigation going into Lindsay Halligan, another U.S. attorney who couldn't get confirmed, or I can't remember the situation there. We don't quite know what the investigation there is, but part of uh what we know from media sources is that uh a judge in the Eastern District of Virginia held that she was not lawfully appointed and therefore she was not the U.S. attorney, and yet she kept using her name as U.S. attorney, signing documents and representing herself as U.S. attorney, and so apparently this is like a violation of a court order. Well, this is super so she's being investigated by the Florida Bar. I don't know what that means, by the way. Okay, so maybe this is not gonna go anywhere. Maybe this was just a hit piece from the New York Times. But do you know who else continued to use his title uh after a judge ruled that he was unconstitutionally appointed? Anyone?

SPEAKER_01 17:14

Jack Smith.

SPEAKER_03 17:15

Jack Smith. Jack Smith was ruled unlawfully appointed by a judge uh in the Southern District, I think, of Florida, and then uh represented himself in the appeal to the 11th Circuit as special counsel, even though the judge had said that you're not properly appointed. So again, it's a little weird. And I guess my question is, isn't this really kind of sick and twisted? Right? It's like, first of all, like who gives the state bar the power to decide? And again, you you can lose your license. You need a license in order to practice, right? To apply your trade and to make a living. Who gave them independent power to decide whether a government actor has acted unconstitutionally? And then the other question is again, like, even if you think people have committed wrongs, and like, you know, you can have a court proceeding, right? And then the court proceeding will tell you if you're right or wrong to stop or not stop what you're doing. But just because the bar thinks that you did something wrong and the bar thinks you erred, like, why should you lose your livelihood? So I guess that's sort of this first question. This is like cancel culture on steroids in a way. And the other question is, isn't this an example of asymmetry? Isn't this an example of asymmetry? What state bar like is run by Republicans? Is there any state bar that's run by Republicans? So is this are these state bar uh prosecutions of concern? Um, or are they an example of the Notre Dame College Republicans uh being correct? Or I don't know.

SPEAKER_07 18:30

Well, and they're an example certainly of how the left goes after people for their entire life. It's like it's not just cancel culture. I think that's almost a euphemistic term for it. It's like cancel weaponized cancel culture or something. You know, they go after someone's entire livelihood. And whereas people on the right, I think, just don't have the stomach to do that. So it's completely asymmetrical, like you said.

SPEAKER_03 18:50

Aaron Ross Powell This does remind me, and I'm digressing a little bit. Um and I know we were you all came to hear the from from the students, but let me just uh since I have a captive audience uh say uh this one thing about cancel culture generally, which like really I mean it does get to this can we live in a society when one side is not playing even close by the same rules? And I think cancel culture is an example of this. So let me give you an example that is law-related. Does anybody remember the Brock Turner case, the Stanford case?

SPEAKER_07 19:22

Of course.

SPEAKER_03 19:22

So, okay, well, Catherine and I remember the Brock Turner case. So the Brock Turner case involved a Stanford student, an 18-year-old, who I don't remember if he was intoxicated, but his victim certainly was intoxicated, and they had been like flirting at a party together, and he committed a sexual assault against her, um, and he was uh prosecuted for this. And the Santa Clara County Superior Court judge, whose name is Aaron Persky, uh looked at the law, looked at the facts, alcohol was involved, they're both 18, they you know, they had some prior interaction together, and said, and and said, again, I don't know the exact facts of the case, and I'm I'm not trying to justify, I don't know enough about the Brock Turner case, but the judge said, in my view, a six-month prison sentence is sufficient. And the uh left and the progressives, led actually by a Stanford law professor, led a crusade to get him recalled. And he ended up being the first judge in Cal in 80 years of uh since the recall statute was enacted to get recalled. And the whole thing is kind of amusing because six months, you know, for an 18-year-old kid who committed a sexual assault, uh, you know, I don't know if that's insufficiently serious, but you you know who else doesn't get any jail time? Like career criminals who have 30 different arrests who end up, you know, killing Americans on subways in North Carolina, right? And so it's kind of it's kind of a again an example of an asymmetry of we really want you to throw the book at peop particular people we don't like, but there are others that you know we're not gonna uh uh do that for. Anyway, whatever you think about the matter, he got recalled. So he lost his job, couldn't practice law again. And you know what happened after that? And this is really what upsets me, and I think is part of this can you live in a society with people who act like this? Or is it like an asymmetrical game? So he emerged two years after his recall teaching junior varsity tennis at a high school. Well, as soon as they found out about that, within a week he was fired because of the campaign. And as far as I know, you know, this this man who otherwise had a perfectly distinguished and you know career as a as a judge and a lawyer at a big law firm uh was retired at 55, and as far as I know, is never gonna be able to work again. Because it is not enough to recall him from his position as a judge. He can't be allowed to make a living anymore. That's the kind of asymmetrical warfare that's going on, not just in the legal system, though partly in the legal system, but uh in the culture more broadly. And I don't No, it's like so they accused conservatives of trying to cancel people after who are celebrating the death of Charlie Kirk. Like, is that different? Is that not different? I don't know. So again, is this a problem? Is this an asymmetry?

SPEAKER_06 22:14

It reminds me of the retention elections here in Arizona. Um, and it does seem like there are frequently campaigns to uh recall like to not retain certain judges just because of and not even their political views going into their decisions, but just their their own private views. Um and and I think that is an interesting problem because judges don't have the same ability to defend themselves or their views like other politicians. And so just um wanted to So here in Arizona, right?

SPEAKER_03 22:48

It's Justice Bollock. This happened to him. They tried to recall, and he almost got recalled or it was very close. It was a nail bitter, and Justice King. Um I mean Justice Bollock is kind of well known, and he's kind of out there with you know his views and has always been somewhat of a public figure of Justice King? What was she controversial? Do we no one has a way that fascinating another example? Can you imagine, like, I mean I don't know, but could you can you imagine Republicans finding judges that they disagree with um over like reasonable judicial philosophy disagreements and seeking to get them recalled? Or again, is this an asymmetry?

SPEAKER_07 23:20

Aaron Powell No, but should we? I mean, should we have that same outlook? Is that why we're often losing? Because we're not willing to be as ruthless and yeah, as they are, as ruthless as they are. I think partially.

SPEAKER_03 23:34

And let me say one other thing about this, and then I promise we'll get back to the actual Supreme Court and law, which I know I want to uh uh go back to to the Notre Dame tweet. But again, like is law the law fair an example of this? Again, I'm just why am I talking so much about this? Because I got so much hate for retweeting the Notre Dame folks, and I'm just trying to defend myself since I have a microphone and I feel entitled to uh defend myself. What about the prosecutions um uh against um Letitia James and James Comey? Now look, I don't know if they violated the law. And if they did, they probably shouldn't, you know, be exempt from prosecution because you know they're on the other political side. Maybe there should be some higher bar. But let's let's presume, let's presume that the prosecutions of them are illegitimate and it's really just payback, okay? Or it's really just going after your enemies. Maybe they should not have been indicted, and so it was good for the grand juries not to indict them because they were preposterous prosecutions. But you know what else was preposterous prosecutions? The Georgia Fannie Willis case, which was totally, utterly insane. There's basically no legitimate legal basis for that. Go back to the phone call, by the way. He didn't say, and I'm not gonna put my students, the students on the spot here. They didn't say he didn't say five me 11,000 votes. Like, listen to the the full call and like let me know if I'm wrong about that. So you'll be surprised if you actually listen to the phone call. You know what else was totally made up? The crime that Alvin Bragg invented about uh a campaign uh violation, uh this hush money violation that that was done after Trump had already won the election. That was totally made up. You know what else was made up? The Letitia James. Oh, E. Gene Carroll, they literally passed a law saying like uh eliminating the the statute of limitations, right, just for this one case so they could go after. And then the Letitia James prosecution against the Trump organization. Well, that was um what was that his crime was inflating his properties for purposes of getting a loan and then deflating his properties for purposes of tax burden. Like, I don't want to get in trouble, but like, doesn't everybody do that? And certainly nobody had been prosecuted in the past for having done that. So again, maybe the Letitia James and James Comey efforts are illegitimate, there's no basis for that, and the grand juries should refuse to indict. But you had four grand juries in extraordinarily liberal jurisdictions, and they didn't, of course, refuse to indict Trump. The petite juries in the New York cases didn't refuse to convict Trump of these things. So again, it seems totally asymmetrical, and isn't isn't that a problem? Isn't that a problem? Okay. That's my whole I thought I was about to get applause uh from uh someone in that audience. But no, okay. So that was what I really wanted to talk about. I wanted to defend my retweet of the Notre Dame. But now let's bring the law students back in and talk about um the actual Supreme Court and the future of the legal movement. Okay, I want to go back, um, if if I may, David, um you had said something about how uh the tariff case wasn't an example, a good example to do this, that the Supreme Court has actually done pretty well um defending against um, you know, crazy things that the left is doing. Say more about that. What why is the tariff decision like a bad example uh for the Notre Dame College Republicans here?

SPEAKER_01 26:36

Well, maybe picking up on Matthew's distinction, one principled and one pragmatic, that's really the principled thing, is that the Supreme Court is uh an institution that's been helpful at combating lawfare. And it's one that, unlike the state bars, and this sort of connects with the recall point, you know, the recalls, at least you're getting some political input that's representative of the community. The Supreme Court, in a similar way, has some ties to the political branches in terms of who's appointing and confirming the justices. The state bars, on the other hand, are almost an end round to get a more favorable set of folks who are not tied to politics in the same way and who might be unrepresentative. The Supreme Court, on the other hand, I think is well positioned to be an institution that can be helpful in restoring the rule of law. The pragmatic uh explanation for it is picking up on Justice Kavanaugh's dissent. We have plenty of other authorities that can be used to rebuild the tariff system. Ultimately, it's a matter of dollars and cents as opposed to something civilizational in nature. Aaron Ross Powell, Jr. Like birthright citizenship? Well, that's your issue, Professor. So yeah.

SPEAKER_03 27:42

I don't know. I'll pin you down on that. No, no, that's all right. We'll talk about that a bit later. But sorry, sorry, go on. Uh so what about the the liberal inconsistency point? Like, does that bother anybody? Uh that I don't know, was Gorsuch right for calling out well actually let me throw it out to you. Was Gorsuch right to call out the three conservatives who had joined all the other major questions cases but didn't join this one? And or was he right to call out the three liberals for, you know, do you remember the student loan case? I mean, you all have student loans here. I don't know, actually. Put your partial like interests aside for a moment. But there, you know, the three liberal justices were more than happy to find uh robust authority to totally rewrite Congress's statutes under a vague provision to waive and modify regulatory programs or regulations related to the student debt, right? It doesn't say waive or modify the debt, right? It and so the liberals were totally fine giving authority to the Biden administration to do those crazy things. The Clean Power Plan, remember that? What is the best system of emissions reduction? That is not clear at all. That's always been like in the fence line, and the liberals were happy to give the Supreme Court uh the Biden administration or the Obama administration authority to do those things. But then when it comes to like a statute that, I don't know, regulate the importation? You know the American colonists who fought the revolution thought that tariffs were regulating commerce? So it's like there is a through line from the American Revolution to the Trading with the Enemy Act to the Trade Expansion Act, and so like totally clearer. I don't want to say it's clear. And they're like, nope, not clear enough, can't let Trump do tariffs. Isn't this a problem? Aren't the the Democrat justices like playing an asymmetrical game? Does that concern you, or should should I not be concerned?

SPEAKER_01 29:24

I think the consistency point is tough to make in statutory interpretation cases, just because every case is gonna turn on some unique statutory text. So I certainly don't want to impugn the good faith of any of the justices, but I agree with you that the tariffs case, in my view, was stronger authorization for the government than student loans, or even especially one example of this was remember the COVID eviction moratorium, where there was a law saying generally you can promulgate regulations that are helpful to stop disease, like fumigation, inspection, etc. CDC used that for an eviction moratorium. That seems like much more of a stretch to me than this text, which was copy and pasted from a law just held to authorize tariffs. So I certainly don't want to accuse anyone of inconsistency, but in my view, the government had the stronger view there. You asked, also asked about the three conservative justices. Was Justice Gorsuch right to criticize them? I thought some of the reporting on this has been a little bit unfair, people accusing those justices of inconsistency. You know, Justice Thomas has had this view, distinguishing between public rights and private rights, that came up in his tariffs dissent for a long time. This was since 2015 or so, spelled it out more thoroughly, but totally explained his vote there. Thought Justice Kavanaugh explained his vote there very well. Major questions doctrine is supposed to be a contextual canon. Clearly, if the context changes, the application of the canon might change as well. So I I thought that was unfair.

SPEAKER_07 30:52

But here's the thing. I think from the perspective of someone who is not a lawyer and sees this more politically, perhaps. I think this is a good the tariff case is a good example of the discontent we're seeing from people on the right from a lot of conservatives, because you see, I think the impression is from people that conservative justices feel the need to justify their impartiality by siding with the left every once in a while, when they need to, when it's a little iffy, because that somehow makes it morally better if they are impartial and they cave to the left on some things. I don't know if that's what happened in this particular case. I wouldn't, you know, who knows if that's what the justices did. But I think that's the impression by a lot of people on the right, and certainly me too. The left has never felt like they had to swing to the right on issues to prove their neutrality. So why do we play that game?

SPEAKER_03 31:39

Oh, go ahead.

SPEAKER_04 31:40

I mean, I would push back on that characterization of caving. I think that if you are an original public meeting originalist, then you believe that there is a target out there, and sometimes that's hard to find, but there is kind of an ultimate truth, if you will, that you're chasing after. And so, you know, if that truth tends to side with a left um normative desire, then then so be it. I don't I don't see it as a caving. It's applying the law neutrally and seeing where it goes.

SPEAKER_03 32:03

So can I agree with both of you in the following sense? The frustration is precisely because we know that conservative justices are doing just that. We know that they're gonna go where the law leads them. So on any given case, like we're fighting over six votes, okay? Look at the birthright citizenship case. Does anyone doubt where the three liberals are gonna come out on this? Of course not. Of course not. It doesn't matter, like, yeah, and I want to be clear, like it's actually a hard issue. There is a conventional wisdom on their side, there are some arguments on their side, but there is a lot of evidence. And I know we're jumping the gun a little bit on the other side. Do you think they're actually gonna assess that and and say, well, maybe I'm open to being my mind is open to being changed about this? I see some nods or shakes in the eye. Correct. Like, no one no one no one doubts that we know where the three of them are gonna come out. No one doubts. So we're really just fighting over six votes, and all they need to do is to peel two. And that's I guess kind of the the frustration uh here. Okay. Um can we move briefly to, or not so briefly, substantive due process, um, which we've talked so many times on the show uh about substantive due process, and it's still like what is substantive due process?

SPEAKER_07 33:13

Uh it's yeah, I asked that like once an episode.

SPEAKER_03 33:15

I have to remind her that we talked about this last time. But that's totally fair because like a non-lawyer and lawyers should be totally confused about this concept, like substantive due process. Is it substance or is it about process? Is this an oxymoron, as John Hart Ely famously said? So basically, the idea of substantive due process, which if you've listened uh to the podcast before, you'll have a brief familiarity with, is basically this idea that there are unwritten rights that are not listed anywhere in the Constitution, but that courts can nevertheless enforce against legislatures. So substantive due process is what got us Roe v. Wade, right? And this unenumerated right to abortion, Griswold, you know, uh uh to be free of state laws relating to contraception. So the left has been playing the substantive due process game very well, like through the Warren Court and Burger Court and the sexual um revolution. And now the question is, what should conservatives do? What should conservatives do now that they have the court? And to give some news, you know, to the people listening here, also for some legal news. There was a case decided on the emergency docket recently involving a California law that I think prohibits the public schools, so the California law prohibits public schools from informing parents if they are socially transitioning their children. And this went all the way up on the shadow docket or the emergency docket to the Supreme Court, and the Supreme Court, in a case, I think it's called Mirabelli, though I can't remember the exact name, said, Oh, this violates substantive due process. Now, on the merits, actually it's a little tricky, right? There are these older cases, Pierce v. Society of sisters in Myers v. Nebraska, involving a right of a parent to raise their child in a certain way. But as far as I know, substantive due process cases have never been extended to public education in a sense. Like you could always withdraw your child from public education in California if this law, you know, doesn't uh if you don't like this law. But it's actually a bit trickier than that too, because you really it you don't know what's happening in in until you discover that they've been lying to you. So it's a really tricky substantive due process question. But I guess the question I have for the law students, if they're willing uh to answer uh this question, is should conservatives play this game too? Now, if you believe substantive due process, I guess I should say if you believe substantive due process is legitimate, then and but it's just been done wrong because they're making up rights, but but there is a way to use history and tradition to actually really come up with rights that are fundamental and uh fundamentally rooted in the concept of order liberty or of American tradition and history and so on, then maybe you could do it better. But if you don't believe in substantive due process, if you believe it's totally make up, made up, are you gonna be the first to say that on the Supreme Court? Or now that you have sort of a conservative majority, should you use substantive due process? Okay, those are my initial thoughts. Anyone wants to take it?

SPEAKER_04 36:00

Well, I think arguably the conservative court is already doing substantive due process. I think Mahmood is a good example of that. I would put that in that category. Um and I don't think it's made up per se. I just think we have to be very hesitant about how we use it. This idea in Glucksburg being deeply rooted in our nation's history and tradition. I think that in recent years, uh leftist courts have taken that and with weak evidence established substantive due process rights. And so the first step, I think, is to overrule these erroneously reasoned opinions, and then from there, I think you can apply substantive due process, and I wouldn't say towards a conservative end or towards a leftist end, just wherever the history brings you. But you have to do history in good faith and have a high bar in order to do that well.

SPEAKER_03 36:41

Yeah. So, okay, what about common good constitutionalism then? Is that similar to this? Is that different to this debate? Uh so a taking away substantive due process, or I guess how different is substantive due process from this idea of common good constitutionalism, right? So to the audience or to the listeners, we've talked a little bit about this. Uh I think it was on our first episode where somebody accused me of being a living constitutionalist. Was that you?

SPEAKER_07 37:06

Yeah, yeah, I did.

SPEAKER_03 37:07

Well, I I I reject uh that characterization. But there's this this question, right? Um, in in the academy, or at least in yeah, in the academy and among law students, that originalism isn't enough. What is originalism? Like we're just bound by the text of the law, just apply the text of the law. And common good constitutionalism, it's a bit hard to pin down exactly what it is. Um and so I'm actually curious how the law students understand it. Um but it seems to maintain this pop this proposition that quote that conservative judges shouldn't just be originalists, but should actually use ideas about natural law and their understanding of the common good uh to advance uh uh uh those notions in actual cases, even I guess if it trans if if it disagrees with the text of the Constitution? Or is it just like a supplement in case of ambiguity? I don't know exactly what it is, but what are your thoughts about that? It's just another variant of the substantivity process question. Should we play by the other side's rules here, right? They're gonna be living constitutionalists and make stuff up. Should we or should we be principled, or is there a principled reason to be common good constitutionalists? What are you guys talking about at the law schools? How many people at Michigan are common good constitutionalists?

SPEAKER_04 38:13

Um Well, I think I think you first have to define what common good constitutionalism is, as you've said, and I there are various camps. I think that there's a relatively small amount of people that believe that based off of natural law principles we should overturn or like abrogate positive law. That's a pretty extreme view. There probably are some that believe that. In fact, I can think of one person who does, but it's a relatively small camp. I think there's more people that fall into the camp of like if you read the jurisprudence of Judge Madey who believe that natural law principles can inform our view of what the original public meaning is. That is, our founders, our framers of the Constitution understood natural law, were very much steeped in it, reading it, um, maybe on a daily. And because of that, the principles they put forward in the Constitution should be bent that way because that's how they would have understood it to be, and that's how the public would have understood those provisions, what they would have understood those provisions to me. And David, I know you have thoughts on this.

SPEAKER_01 39:07

Well, I think that's a fairly good summary, I would say. Similar at Yale, a few common good constitutionalists, a few pure, pure originalists, a few uh right-wing judicial realists. I think we'll talk about that as well. That's a new category for me. I haven't heard about it. Probably most people are some mixture, something like what Justice Alito has described as a practical originalist, using originalism for the things that it's good at, using other tools where they're needed. I think you could I think the debate between originalists and common good constitutionalists has somewhat narrowed on campus and in the literature over the last few years. I'll say more. It was originally pitched as something radically different than originalism. I I think the debate is narrowed in the following way. Both camps seem to agree that a judge is constrained by the meaning of a law at the time it's enacted in some sense. The difference between the two schools of thought is whether the natural law is a mandatory component of the law when it's enacted. So you have a piece of text, an originalist would look at the philosophies, the statements at the time the text was made, even if those were natural law statements. The difference is that the common good constitutionalists would do so even if the natural law did not inform the original meaning. Now, I think that's likely a fairly narrow disagreement because in many cases, common good constitutionalists claim that the natural law tradition is part of our tradition. And so there's naturally going to be an alignment behind the context that informs meaning versus parts of natural law that don't inform meaning. But I know I'm getting a little bit in the weeds there. I think a lot of the differences are becoming somewhat academic.

SPEAKER_03 40:45

So, okay, let's I have two hypotheticals for you. One not so hypothetical, but let's start with uh the hypothetical. Um actually, none of these are really hypothetical. A state decides let's call them hypothetical. Let's call them uh let's call them um uh hypotheticals. So a state decides to allow same-sex marriage. And suppose Obergefell is reversed, so there's no constitutional right for same-sex marriage. That doesn't answer the question uh of you know, could there be a constitutional prohibition on it? So suppose a common good constitutionalist judge, whatever that is, I don't know, I'm trying to figure that out, right? Now has to decide, oh, a state legislature has allowed same-sex marriage. Same-sex marriage is so contrary to the natural law, so contrary to the common good, I'm gonna strike it down anyway. Is there anybody on campus saying that kind of thing? And it could be your it doesn't have to be you asking for a friend kind of situation. Like, is or is it like what would Adrian Vermule say? It's a bit unfair. Adrian Vermule is in here and you aren't Adrian Vermule, but is that out of the question? Do you do you have you know students on your campus like, oh, we wouldn't do that. We wouldn't do that.

SPEAKER_04 41:48

If there's like no plausible textual hook, well I'm on page 37 of Common Good Constitutionalism, so I don't know if I can comment on that yet.

SPEAKER_03 41:55

I think there's a split. There is a split, so some people would do it. The minority, I would say. That's super interesting. So you know the so this is interesting because it goes back to a famous case, um um Somerset's case in England, decided by uh Lord Mansfield, who basically said slavery is so contrary to the natural law that it could only be supported by unmistakable positive law. In other words, it sort of recognizes that look, when the law is ambiguous, when there's a lack of clarity, we are going to enforce the natural law. I guess as a presumption that the legislature didn't uh uh would would not have wanted to violate the natural law. But if the law, the positive law, unmistakably requires the thing in question, uh then we just let it happen? We just we just let it be. And that does seem in tension with this other the split, then. So it's that would side with one split over another. Okay, well, let me ask you a different hypothetical.

SPEAKER_04 42:52

Can I push on that mechanism just a second? So I'm understanding. So if the court were to say this is um so much of an overreach of positivism that this law runs in the face of natural law and should be overturned, would that be because they recognize some sort of substantive due process or some sort of like independent right out there that this statute was then running into? Is that kind of the mechanism?

SPEAKER_03 43:14

Well, whether you believe in substantive due process or not, I guess it is a kind of substantive due process. So how would that have operated? The whole thing is super weird though, because how would it have done, how would it have worked in the Somerset's case? If you were if you believed in substantive due process. Well, some rights are so deeply rooted and fundamental, like you know, the right to be free and the right to the fruits of your own labor and the right not to be enslaved, that I would just strike down laws in favor of slavery, promoting slavery. But they didn't do that. Actually, they used substantive due process in support of slavery, right? That's actually where American substantive due process comes from, the Dred Scott case that your right to have property in your slaves is so fundamental that no state can prohibit you from carrying your slave property into them, or certainly the federal government can't. Um so yeah, it's it's it's a kind of weird exercise, but the slavery issue I think really uh uh is where the rubber would meet the road. And if you have an answer to that question, maybe you've maybe you've decided, I think, whether you're a common good constitutionalist or an originalist. Well, here's the other hypothetical. Suppose there's a Korean spa that's okay, so you were all thank you. So you were all on X last night uh around 9 p.m. So you know what I'm talking about. Uh the uh I'm laughing because I have to be careful. I said I can't talk about this case on our live taping because this is a family-friendly podcast. So I have to be careful exactly what I say. But suppose there's a Korean spa that only treats female clients, and the Korean spa tradition is that everybody is completely naked, so they're completely in the nude, and a um male uh who's intact, uh who so uh uh uh present uh claims to be a female, claims to identify as a female, uh wants to get this Korean spa experience, and it's communal too, which is I guess is the real problem. It's it's it's communal too. And the state of Washington has public accommodations laws that say you can't discriminate on the basis of sex, sexual orientation. It might even say gender identity. I can't remember. I was reading this kind of quick does it say gender? It says gender identity, okay. Um and uh the question is, therefore, must the Korean spa allow and so in this case they you know they denied the I'm gonna say female identifying but male presenting uh individual into the spa who then immediately contacted probably that was the plan all along, right, to immediately contact a human rights commission. What do they even call these commissions? It's very Orwellian, actually, in a way. And so they sued, they enforced, there was an enforcement action against them. Uh and we had this Ninth Circuit uh panoply feast of opinions um yesterday on this issue, where the uh the panel was was modified, but but basically they upheld this law against a free exercise challenge. And um the dissenting judges said that this was a free exercise clause, and one of the dissenting judges uh used very colorful language at the beginning and basically just openly said, you know, this this individual was intact, uh it is a it is about that. He it was sort of a shock value to it, like this is crazy, what are we doing here? How can this possibly not be obvious what the answer is? And so I guess the question is like if you're just doing law, well the law didn't that wasn't enough to get a bunch of judges on the Ninth Circuit to say um that this was crazy and surely it can't be um uh constitutional. What what what are we like the claim is tricky, the claim is for exercise. So actually, let me sh let me sharpen the point. I know I'm getting some weird looks in the audience. It was a free exercise claim. So it was a religious exercise claim, and this is pretty weird. It's actually a difficult claim to make. So under current doctrine, generally applicable and neutral laws are valid. You don't just get religious exemptions for it unless you can show that the law isn't generally applicable. And so, like, they were arguing that, well, this law it doesn't apply to private social clubs, so it's not generally applicable. But like, there's no such thing as a generally applicable law on that test, right? Because every law applies only to a certain category of persons, right, for a certain reason, and you could argue that it's not generally you can always find some way to argue that it's not generally applicable. And the other problem is it's not like they were exercising their religion, right? They just had a religious conviction that nude women shouldn't be in front of nude men, I guess, right? It's not exercising a religion, it's having a religious conviction about something. So the free exercise client claim is actually pretty weak under current doctrine, if you ask me. But shouldn't shouldn't the Korean Sabah have won anyway? Or am I just being radical and alarming? So I did I did post I did post. I'm gonna get in so much trouble for all this, but I did post that this is really this case really makes one want to be more of a common good constitutionalist.

SPEAKER_07 48:14

Well, yes, because don't you think in a sane society the Korean Sabah would have won? And I don't know that I care what the justification is for that.

SPEAKER_03 48:21

This is why we have Catherine on this podcast.

SPEAKER_07 48:23

That is based on very you you're what's the I mean it doesn't if you're a sane person and you're a judge, you should do whatever. I think it's you have to do whatever you have to do to defend the the sane perspective. I mean, that's crazy. I mean if our constitution says that the that a fully intact male has to be in that spa, then there's something wrong with that.

SPEAKER_01 48:46

Well, let me both agree and disagree. How based of you? We'll see. You'll have to tell me. So I'll disagree on the weakness of the free exercise claim, but I think you'll actually like where the reasoning leads you in terms of the exercise the judge is doing. So as the court cuts back on what it means for law to be generally applicable, such that very few laws will count as generally applicable. Almost all of them will be subject to strict scrutiny when there's a sincere religious opt-out. It's moving towards a regime before this case called Smith that established the generally applicable test. And in that regime, you ask if there's a sincere religious conviction that's being burdened. And I don't think it's just a conviction. Surely the religious conviction drove it, but the act of separating the sexes is an exercise of that religious belief. And so once that trigger occurs, you ask how compelling the state's interest is and how narrowly tailored the law is. So if you think that there's an extremely strong policy reason to want to be able to separate men and women, that would play into that compelling interest test and it would land on that side of the scale. So you get to use that policy reasoning that you're describing now, but under the free exercise clause.

SPEAKER_03 49:59

So I actually really like this. I so can I summarize it maybe as follows. Going back to Somerset's case, right? Slavery is so contrary to natural law that it could only be supported by unmistakable positive law. Okay, I get that the Washington non-discrimination statute protects against gender identity. Does it follow that you have to? Is it a compelled and necessary reading to interpret that to mean? And therefore that includes presence if you're pre-operation and fully physically intact in front of nude women in a pr intimate space? Like, do you have to interpret it that way? Or maybe you can interpret for exercise and and and the statute is not being generally. So there are things you could do with the statute, and you could say, look, all else being equal, we're gonna presume the legislature did not intend to be insane. Okay? At least that's the legal presumption. Whether it's true, one could say that in liberal states it's a fiction.

SPEAKER_07 50:56

I live in Minnesota, so I happen to know that everyone who writes laws in Minnesota is absolutely insane. So this is one of my biggest issues that I bring up on the podcast is why are why do we care what their intent was? Because those people are all morons and insane.

SPEAKER_03 51:08

Yeah, so look, there is gonna also be unmistakable insane law sometimes. Slavery, unmistakable, unmistakably clear and also contrary to natural law. The California law, public schools must keep transitioning children secret from their parents. That was maybe you could say unmistakable positive law. But was the Washington case positive law? And so maybe the answer is you could just like start with the presumption that state legislatures don't want to be insane and don't want to violate the natural law, and we will interpret the statute to avoid that result.

SPEAKER_06 51:40

So maybe that is like constitutional avoidance. Yes. Unless it's super clear that we're that the legislature's trying to violate the constitution. We're just gonna read it as if like that obviously that's not what they're doing.

SPEAKER_03 51:53

That is a great point. It is similar. It's it's like any other clear statement rule. So law students, charming Betsy Cannon. Do you know what I'm talking about? Okay, yes, I get some head nods. You must be from Penn. Um Yes, that is the Penn row. Okay. Uh bad professor. He's not from Penn. Okay, no that we there are excellent professors here who Jonathan Green, Charlie Caps, who talk about all that. But the charming Betsy Canon is basically this idea that we're not going to interpret statutes to violate international law, to violate the law of nations, unless it's unmistakably clear that that's what the legislature intended. Why? Because it's like a really bad thing. And presumably the legislature didn't intend it, if that is the consequence. Presumably, when they passed this generally neutral and applicable law in Washington to prevent discrimination against people with different gender identities and sexual orientations, presumably that they weren't thinking, oh, and yes, this means we must subject nude women in a Korean spa to an intact nude male, right? And so, like, there are ways, again, it's this canon of avoidance, this clear statement rule, just with it's like the natural law clear statement rule or something like that. And maybe that's how common good constitutionalism can be used. As always, we are running out of time here. I have to ask what you all think about birthright citizenship. Like, what I really want, you don't have to tell me what you you think, and yes, I'm biased, as everybody knows.

SPEAKER_07 53:05

And I know this podcast reflects his train of thought, which is like you can't follow it sometimes. You're like, you bounce around from topic to topic. I love it. It's my favorite.

SPEAKER_03 53:13

I follow it just fine. You know, because of course it's it's in my own mind. But no, we've promised our listeners so many times a deep dive, and I think Catherine and I agreed we're doing it next week because I gave testimony in Congress, and I will say I was particularly impressed with myself how I how I I'm always particularly impressed with myself. I know I'm getting those like He said this to himself in the mirror in the morning. I'm so impressed. I sat there, stone faced, absolutely silenced, with no facial expression whatsoever, as no one asked me any questions for two hours. Uh until Mike Lee at the very end said, Professor Roman, you want to add anything? And I said, Yes, in 90 seconds, let me prove to you why everybody else is wrong about this. Uh I thought that was a pretty dialed-in response. But I'm I'm impressed with my my my two hours of silence. But I think it's time for our deep dive into birthright citizenship. So we're gonna do now, yeah. I have the last word, you know, I have a microphone now. Uh so we'll do that next week. But like, what is I I guess I'm trying to figure out what where the Overton window is on this. Just like with common good constitutionalism, what are the young kids saying in the schools? Like, is this obviously like, oh, we're so unprincipled, birthright citizenship's always been the conventional wisdom, these arguments are totally invented, or is there a like actually this is hard? Or are you know, maybe if you're at Yale or Harvard, this is existential, I don't care what the law is, the answer is X, Y, or Z, and that's what we should, that's what we should do, what the right answer is. Like, what's going on? What's what's in the water?

SPEAKER_04 54:34

I've seen a pretty marked shift uh since the beginning of the year. I think a lot of people came in with this idea that, of course, birthright citizenship means that if you're born here, you are a citizen full stop, period. Uh but I think over time, as there's been law review articles that have come out, that this has been in the news, the people have seen this as more a muddied issue than they initially thought. And I think there's at least a willingness to dig into that history and to ask questions and question whether or not that initial premise is correct. I think I see a good amount of people on the right that have drawn the conclusion that you suggest in your law review article that being born in the United States does not necessarily mean that you have full citizenship. Um I think among the left there's an unwillingness to dig into that, maybe because of fear of the muddiness of the waters. But I definitely have seen a pretty significant shift in the last couple months. Yale?

SPEAKER_01 55:23

I would echo that. I would also say there's been a significant shift, uh, largely because of your scholarship, some other scholars who have challenged the conventional wisdom. I also think there was this wave of scholarship. I won't name names, right after your paper and Professor Lash's paper were posted, that were not making the argument on the other side, but just bashing you for daring to break from the conventional wisdom. That turned a lot of people off of that. Um, I would also say that this is a topic that gets people talking about what to do in the face of underdeterminacy. I think modern mass illegal migration is just very hard to find a great analog. You've tried with the safe conducts or arguments on the other side, too. The temporary sojourners issue seems totally shifting and somewhat underdetermined by the time of 1868, as you and others have pointed out. So, when there's underdeterminacy, what do you do? Do you defer to the conventional wisdom? Do you impose your own preferences? Do you consult natural law? Do you defer to the government to have some flexibility in dealing with problems? So I think it's raised a lot of the questions that we've been talking about this whole show.

SPEAKER_03 56:28

And Morgan, you've been so busy preparing and running this conference that, like, I don't know if you've have you talked to anybody like in the last two months? You've been so busy. But to the extent you've talked to anybody and not about this conference that that you've organized, and it's gonna be absolutely wonderful. And I'm so excited for it. Is anyone talking about birthright? Anything else?

SPEAKER_06 56:44

Yeah, they are, they are. And I think when you do your deep dive, I think there's some disagreement or maybe um, yeah.

SPEAKER_03 56:50

What do I need to explore?

SPEAKER_06 56:51

Yeah, well, I think on the on the conservative side, you could explore like why is it that perhaps birthright citizenship is not what we think, um, and maybe tease out the there's arguments about the um there being invaders, and I think that's yeah, that's the Jim Ho and Josh Blackman type argument.

SPEAKER_03 57:11

So how am I different than those? Or maybe I'm not different. I don't know. I'm not reserv reserving judgment.

SPEAKER_06 57:15

Yeah, so I think you should tease those out on your on your deep dive.

SPEAKER_03 57:18

Okay, so okay, that's helpful actually, because I did also disagree with Chuck Cooper on some stuff. Like Chuck Cooper at the testimony uh in Congress said that Won Kamark was wrongly decided. Under my view, actually, I think it was probably rightly decided, but it doesn't answer the questions here. So, okay, how am I different? Or or arguments. Uh uh the range of conservative arguments on the table. That's that's super helpful. Okay. Well, thank you all for your attention. We wanted to leave 15 or so minutes if there are any questions. Can you just hear me? All right, yes. Yeah, okay.

SPEAKER_05 57:45

Um apologies for that catch.

SPEAKER_03 57:48

No, no problem. Can you tell us your name? You don't have to if you don't want to be able to do that.

SPEAKER_05 57:51

Yeah, my name is Spencer Shia, I'm a three-year-old e Chicago. Um Professorman, I'm a big fan of your paper on birthright citizenship. But it kind of had a question on the temporary sojourner issue, which is how well does that really map on to like modern visa categories? Because ca because because I could I kind I can kind of see it, both the stojner except like rule in the 1868 as a de facto or de jure rule. Like does the story talks about whether they were domiciled or not, which seems a bit orthogonal to let's say like visa categories. Because you can imagine someone on H1B being domiciled in like a legal sense. And I wondered how do we translate that kind of history of saying it's about domicile, and like if you look at Long Kim Mark, they look at this very functional as kind of de facto test as a whether it's a permanent home or not. And then we apply that to like visa categories, which I think kind of cut across from some of these historical categories.

SPEAKER_03 58:38

So the fascinating thing, thank you for the excellent question about temporary sojourners and how they map onto visa categories. So the fascinating thing about the Lynch v. Clark case, it was this case that held that temporary sojourners, a child born to a temporary sojourner, was a natural-born citizen. So this was a case from New York in 1844, is a super famous case, it is one of the linchpin arguments that the conventional wisdom sort of has in terms of what the common law was. Well, the fascinating story about that case is Patrick Lynch was there helping his brother, uh Thomas Lynch, or maybe no, it was Bernard Lynch. There are three Lynches here, and then Julia, the daughter, who was born. Well, Patrick Lynch, Julia's father, it's Julia's citizenship that's in question, lived in the United States for three and a half years, almost four years. And his lawyers said he was domiciled. Everyone is kind of arguing like uh about his domicile, they insisted that he was domiciled, and the judge in the case said, actually, you never declared your intent to remain, so it doesn't matter how long you've actually been here, and you ended up going back to Ireland. And so it strikes me if through four years of working in the United States, giving no indication that you're gonna go back, but giving no indication of your intent to stay, if that still made him a temporary sojourner, and maybe that was wrong, actually, maybe he was domiciled, and then we wouldn't actually be having this argument about Lynch V. Clark. Like his lawyer said he was domiciled, right? And so maybe Lynch V. Clark, if that's true, maybe Lynch V. Clark is not a very good precedent for the temporary sojourner children are citizens. But it strikes me that that maps on to most visa categories, because it actually doesn't matter how long your student visa lasts, right? Because at the expiration, you're expected to go back to your home country. So you actually cannot legally intend to remain. Uh and now that so there's a question if, well, I intend to violate the law and overstay my visa. Is that sufficient? Like to create, can you independently create an intent to remain for domicile purposes? Uh this, by the way, just so everyone gets caught up to speed and is on the same page here, this is the Trump administration argument. They actually don't talk about illegal aliens almost at all. They say that temporary sojourners are not subject to the jurisdiction of the United States in the relevant sense, and all illegal aliens, no matter how long they've been in the United States, are necessarily temporary. Because you cannot legally establish a domicile. Now, there are no American cases or English cases that say this, but you know what does say that? Not quite the Code of Justinian, but the digest. So the it goes all the way back to Roman law. So the Code of Justinian did establish the law of domicile almost similarly to what we have today, and then there were interpretations of it that says, well, of course, if the sovereign prohibits you from coming in, you can't unilaterally establish a domicile. So maybe we shouldn't become good constitutionalists, but should we be Roman lawyers? Should we Romanists to answer this question? Anyway, that's uh my initial thoughts on that question, which was which was very good.

SPEAKER_00 1:01:23

My name's Ethan Abakoff from the University of Arizona. Is it better? Yes. I'm not used to talking into a box. Um so we've talked about uh substantive due process, we've mentioned Justice Bollock, I'm here, we're here in Arizona, I'm wearing cowboy boots, I have to bring up the Second Amendment, specifically in the context of substantive due process. Um we've seen the liberal justices pull out rights of things that are not enumerated or nobody's ever really thought of, yet the Second Amendment is often treated as a second rate amendment. How do we deal with that?

SPEAKER_03 1:02:04

Do you guys have thoughts on Bruin and the tradition and history tests? If if so, you can you can chime in. We're totally putting them on the spot, but otherwise I will do a riff.

SPEAKER_01 1:02:13

But well, sure. I think quick thoughts there. Um I think Bruin is not set up as a test that's supposed to be done from first principles in every single case, going back from scratch to the history. I think what we'll hopefully find there is that the Supreme Court will be taking enough cases that for each category, say sensitive places, say dangerousness of weapon, dangerousness of person, it establishes a rule that can then be applied directly by, say, district courts. And so they don't have to go back through and look at all the history from first principles. They have workable rules that they can get. And I think that's some of the interesting thing about the limits of originalism, is that originalism often gives you a meaning, but without an a great workable, implementable doctrine. And so I think the Supreme Court is currently in the stage where it's identified original meaning and now it's trying to come up with rules that can be applied without going back and starting from scratch in each new case. So I think that's uh one response to some common criticisms of Bruin that it's overworking judges with history, is hopefully only temporarily.

SPEAKER_04 1:03:19

Yeah, I completely agree, David. Actually, I was talking with a district court judge a couple weeks ago, and he said that with a lot of his 922G cases, he punts on it. Like he's trying to find ways to not make the decision. So 922G is the statute at issue, uh, is it 18 USD 922G? Um in in Berwin and a lot, I think in Rahemian, a lot of the gun cases, uh maybe all the gun cases. Um and so he's in possession, right? Felony in possession, yeah. Felon in possession, correct. Um and so he's, and I'm sure he's not alone in this, purposely trying to delay deciding the case because he just doesn't know how. Um and then another thought on this is I'm actually writing a paper on this called uh levels of abstraction or tiers of scrutiny in disguise. And I've read a lot of lower court opinions in the Circuit Court of Appeals, and uh what it seems to me is happening is a lot of these decisions on how to set the level of abstraction correlates with how important the court sees the government interest. And so if you are an originalist, then I think that might give you some pause, that it seems like we're still injecting this normative portion to the test. Um I don't know how you do it in a way that you avoid that, but it's something that we have to confront as original public meeting originalists.

SPEAKER_03 1:04:27

And all I'll all I will add about that is look, your point's well taken, right? How is it that when liberals are doing substantive due process, all of these rights that were like totally frivolous, totally frivolous, totally came out of nowhere, were gonna be enforceable. But like the Second Amendment, there's actually an amendment that says something about that, unlike say abortion, right? Or the Griswold case, the contraception case. And so again, it shows that you know, when the other side plays this game, it plays it in a very odd way. Now there is a way that the conservatives can do this in a principled way, which is probably the Glucksberg test. Like it actually has to be deeply rooted in history and tradition, and you narrowly define the right. And of course, if it's in the Bill of Rights, that's a pretty good indication that the right is pretty deeply rooted in American history. And so that's how you could plausibly get under like a r an like uh an argument in favor of gun rights but against abortion. And that's consistent, that is principled. Could you come up with a principled, consistent argument for why abortion yes but guns no? I don't know, I've never heard one. But but but maybe. But maybe there is one.

SPEAKER_04 1:05:29

So can I ask you a question on that? Sure. Um if you think that we should characterize the the framing of the history, the level of abstraction at its at its tightest form, and look for like true analogs, then do you think that Rahimi was rightly decided?

SPEAKER_03 1:05:44

Look, I actually don't believe in substantive due process. So this is all like playing the game from the other side, okay? Um but yeah, no, I uh I th I think there's a problem uh with the Bruin test because you Bruin uh being the case. Where uh the New York had a licensing regime that basically gave free reign to the licensing officials to deny guns to people and to grant guns. And who did they grant guns to? Well, they're rich and powerful, right? And can I just say that the Bruin decision could have been a paragraph? Why does the Supreme Court why does the Supreme Court always do this? Citizens United. We talked about that on our show. Could have been a paragraph, but instead it was a hundred pages of like nonsense.

SPEAKER_06 1:06:23

Maybe we should make judges write out their opinions on typewriters again.

SPEAKER_03 1:06:27

Typewriters, quill and parchment, Morgan. Like I think, yeah. I think this would be, you know, those marshall opinions are pretty logged. Like, I don't know what he was writing on, uh, probably by hand. But it could have just been a paragraph. Like, okay, Citizens United. Like, is the New York Times a corporation? Yes. Does the New York Times have the free press right to publish their sentiments on political figures? Yes. Is there any difference between this organization publishing a video about Hillary Clinton than the New York Times publishing a video? No. Ergo, they have a free press right. That could have been a paragraph. And instead you get a 100-page insane opinion. Whatever the Second Amendment upholds, surely it can't be the case that it allows New York State licensing officials to only grant licenses to like rich and powerful people. That is so discretionary and so open-ended that it effectively creates sort of this two-tier program. But back to the question, what the court actually ended up doing was creating this test that the not just the right having to be defined at a particular level of generality, but the government regulation of the right has to be narrowly defined, right? And this is weird because it's like there really were problems. The problems today really are different than the problems back then. Like, oh, I don't see any regulations of bazookas in the early 1800s. Well, of course you don't. Like maybe that's like a different sort of situation. So like I don't love the Bruin test. I don't love the Bruin test, but I think substantive due process is made up. And so no one can accuse me of inconsistency.

SPEAKER_04 1:07:54

I don't want to take up too much time here, but on you again, I'm sorry. So I would guess you're a proponent of privileges and immunities, right? You think that might be how we can do a similar thing through a different provision. How would I mean I understand there is a citizenship requirement there, and that's a big way in which it's just different, but the historical inquiry under privileges and immunities, how would that be meaningfully different than under substantive due process?

SPEAKER_03 1:08:18

It depends what you think the privileges or immunities clause means. Again, these are all problems that proponents of substantive due process and like a fundamental rights view, privileges or immunities have to confront. The privileges or immunities clause says no state shall make or enforce any law, which shall abridge the privileges or privileges or immunities of citizens of the United States. Are there unwritten fundamental privileges and immunities of citizens, like the right to contract, parental rights? Of course there are. Of course there are. But the question is what does it mean to abridge them? And in my view, the word abridge means treat people indiscriminately, like invidious discrimination, arbitrary discrimination. And so historical categories might be useful in figuring that out. So like the black codes, why were the black codes unconstitutional? Well, because your skin color has nothing to do with contract rights or property rights. Why would a gay code be unconstitutional or a Catholic code be unconstitutional? Because your religion has nothing to do with your right to bear arms. I know in English history only Protestants were allowed to bear arms. So that's, you know, again, tricky under the Bruin test. But like under the modern privileges or immunities, if we revived it, it would be a non-discrimination test, which would allow states to regulate, I guess, and and innovate uh in that respect. So again, that's not a problem I have to confront because I'm I would not sneak substantive due process back in through the privileges or immunities clause, even if other judges would. This is super technical for our podcast listeners, so I hope you stuck with us.

SPEAKER_07 1:09:36

Do you think that this panel could have been a paragraph?

SPEAKER_03 1:09:39

Oh, okay. That was a sharp dig as oyst from Catherine. Certainly my last answer could have been a paragraph, but instead I filibustered since we talked about filibuster. Uh we have time, I think, for one more question. Um maybe two, but I see it in the back, so go ahead, please.

SPEAKER_02 1:09:53

Uh you earlier talked about the courts backsliding from Smith back into Sherbert Yoder. Uh does anybody think that balancing tests are coherent and appliable?

SPEAKER_04 1:10:07

Who are you and what school are you from?

SPEAKER_02 1:10:10

I'm Matt from Michigan.

SPEAKER_03 1:10:13

So Matt from other Matt from Michigan, will you answer Matt from Michigan's question?

SPEAKER_04 1:10:17

On whether or not I think balancing tests are coherent.

SPEAKER_03 1:10:21

Or sure, do you think we should how about do you think we should go back to Sherbert v. Werner? How would that look like? I mean I'm happy to answer the question.

SPEAKER_04 1:10:27

Um okay, so actually I think you and I agree on this is I think employment division v. Smith is rightly decided because of the symmetry it has with other types of tests that we have in constitutional adjudication. So you look at Arcara in the free speech context, neutrally applicable or um generally applicable, neutral law, upheld. You look at Rosenberger in the establishment clause context, same story. You look at Washington v. Davis in the equal protection space, same story. And so I think that maybe you could distinguish and say that in the um freedom of religion um space, it's treated different for some principled reason, but I have a hard time figuring out what that principled reason is, and so for that, you know, I I I think of myself as trying to be as neutral an arbiter as possible when I approach questions of the judiciary, and so for those reasons I would uphold.

SPEAKER_03 1:11:12

I'm gonna say something super based right now, only because actually most conservatives disagree with me about this. I actually think balancing tests make sense sometimes, and at least the tiers of scrutiny. So there's been an article, my friend Joel Elisai, I think, wrote an article called Against Tears of Scrutiny or Against Constitutional Tears of Scrutiny. But that basically this theory that like courts are just making things up when they apply strict scrutiny to some rights or to some classifications and rational basis to others. But actually, like if the privileges or immunities clause, for example, or the equal protection clause, or whichever clause, like really requires equality, well, all laws make classifications, right? So we need some theory as to which classifications are just you know advance the purpose of the right, the genuine regulations of the right, and which are invidious discriminations. Well, if it turns out that race typically has nothing to do with why we have guns or why we have free speech or why we associate, then a race-based discrimination is almost always gonna be bad. And what better way of saying that than you get strict scrutiny? Right? Sex discrimination, look, gender, sex generally doesn't matter for most things, but it will matter to some things, like military service, put aside VMI, okay, which I'm not convinced was actually rightly decided, the military institute case. Okay, that might get me in trouble, but you know what? I'm tenured, so forget it. Like I think VMI is probably wrongly decided by that. Um so you get intermediate scrutiny. Now, does that mean economic liberties get only rational basis? No, that I disagree with, right? I think economic classifications can be totally arbitrary, can be protectionist. So I would replace the rational basis test with something like rational basis with byte. But same thing like in the First Amendment context. What does the freedom of speech mean? Obviously, it has to be regulated to some degree. Time, place, and manner restrictions are okay. Like you can say whatever you want about me, but you can't do it in a bullhorn in front of my house at two in the morning, right? So, how do we enforce this? Well, if the regulation is about viewpoint, it's per se invalid. If it's content-based, well, that's generally invalid, so we'll give it strict scrutiny. Time, place and manner restrictions get lesser scrutiny. That just sounds like a way to operationalize the sensible observation that all rights can be regulated to some degree, and we have to figure out a line between the regulations that are genuine regulations and those that are legitimate discriminations or bridgements of the rights. So, Joelle, come on the podcast, defend your article against tears of scrutiny, but I'm uh skeptical of of replacing them. Thank you for the question. Well, I think we are out of time. We went over our hour a little bit. Thank you to our student panelists, and thank you for the audience. We really appreciate you sticking with us. See you on uh see you next week for our deep dive into birthright citizenship.