Listen now | “Tear it down. Start over again. We can make a brand new start.” - Blue Mafic A Bad Omen Judicial Excess Recorded: June 25th, 2022 Published: April 36th, 2022
Your guest makes the commonly-heard claim that the mere fact that abortion performed before quickening was not punished as harshly (or, in some cases, at all) in English or early American common-law courts somehow gives historical support for the right found in Roe, at least prior to quickening. See, e.g., Aaron Tang, The Originalist Case for an Abortion Middle Ground (September 13, 2021), https://ssrn.com/abstract=3921358. But there is *not a single recorded instance* of a legal text or commentary in English common law or in American law prior to the passage of the Fourteenth Amendment speaking of any “right” to an abortion.
Just because an act was not heavily punished or criminalized at the time of the founding does not mean that the founders considered it a "right" that would be included in the 9th Amendment. In principle, the mere fact that an action wasn’t previously prohibited cannot be the basis for calling it a “right,” or else no new laws prohibiting actions that were previously tolerated could ever be passed. For example, for centuries, our Nation tolerated the smoking of tobacco in its restaurants. Many states and cities nonetheless passed laws prohibiting smoking in public restaurants. There was, of course, no basis for litigants to challenge these new anti-smoking laws by claiming that, merely because it was long tolerated by the law, smoking tobacco in restaurants was a “fundamental right” deeply rooted in our legal history and tradition. Only if there was a longstanding tradition of the law affirmatively protecting the ability to smoke in restaurants might there be even a hint of such a “fundamental right.”
All questions about whether or not abortion is a fundamental right centered around bodily autonomy, all debates about the legal reasoning behind Roe or now Dobbs, are secondary to the fundamental question -- When is a person a person, with rights that a government and a court are duty-bound to consider and protect?
It's a tough question to answer, so much so that a lot of people seem reluctant to commit to any answer at all. But it's also seems to me to be foundational to the concepts that undergird the Bill of Rights and liberalism more broadly.
Ryan, I agree that the "when is a person a person?" question is the heart of the abortion debate. But it is NOT the heart of the legal question the Court was asked to answer in Roe, Casey, and Dobbs. The question is: does any provision of the Constitution take the issue of abortion out of the purview of legislatures by making abortion a "right." If no provision of the Constitution does so, then judges can't just invalidate state laws they don't agree with. Casey (the current state of the law until yesterday morning) said that the phrase "[no state shall] deprive any person of life, liberty, or property, without due process of law" included a right to abortion. I think any reasonably honest interpretation of that clause would conclude that it's about making sure that people receive fair procedures, like the presumption of innocence, notice, opportunity to be heard by an impartial court, or having laws passed through the proper mechanics of democratic lawmaking. I don't think that phrase includes any hidden list of rights. But even if we allow for so-called "substantive due process," the rights that the Court divines from that phrase have to be limited somehow, otherwise the justices would just say anything 5 of them agreed was important was now a "fundamental right." The Glucksburg test does a decent job of finding a principled way to cabin "substantive due process."
It's hard, because I'm very pro-choice. I'm probably FAR to the left of your average voter on this issue. I think a person becomes a person (with rights, etc.) at conception, but that a woman's bodily autonomy should outweigh that person's interest in life until the fetus could survive *without unusual medical intervention* outside the womb. At that point, the woman's autonomy right is less important because she could end the pregnancy by inducing labor and *not* kill the fetus.
Anyways, the point is that my thoughts on abortion (and yours, and Matt's, and Kmele's) are not the legal question. The legal question is only about what the Constitution says and doesn't say. I would be happy to amend the Constitution to add an abortion right, but I just don't think any reasonable person can honestly say that either the framers of the Constitution of 1789, the bill of rights, or the 14th amendment would've understood the words they were putting on paper to have included a right to abortion.
Finally: note that the mere fact that the framers of a Constitutional provision didn't understand that people would take them seriously / at their word is NOT enough to change judicial outcomes such as Loving. I.e., just because the framers of the 14th Amendment might not have *really* meant to legalize interracial marriage, doesn't negate the fact that they wrote the words "[no state shall] deny to any person within its jurisdiction the equal protection of the laws." It says what it says, and Loving, Obergefell, and O'Connor's concurrence in Lawrence are all fully within the obvious meaning, even in 1868, of that provision.
This is a good response to my post. You're right -- courts deal with the law. It's their raison d'etre.
But not all questions are legal in nature, and I really wish that the courts would be more willing to just come out and say "This isn't under our purview. Go sort it out in the legislature". Or even "This isn't under the purview of any branch or level of government. Go sort it out amongst yourselves. Just be peaceful". (Now I'm thinking of many issues, not just abortion).
But instead, it seems like the courts feel compelled to render some sort of conclusive decision, and on these really contentious issues judges twist themselves into knots trying to find a legal justification to support whatever non-legal position they already hold. It's not just legally messy, it's complicit in the long process of the legislative branch basically abdicating its responsibilities.
I guess you could say that Dobbs ultimately does what I want by freeing up State legislatures to set their own rules. And maybe the decision in Dobbs simply couldn't be as simple as I'd like because it had to go through the complicated process of untying the knots that previous decisions formed (I'm genuinely ignorant of what kind of arguments a court can and can't use to overturn a previous decision).
But my impression as a non-expert is that Dobbs muddies the legal waters even more and, in doing so, further obscures what I claim is the central question in the abortion debate (though I appreciate that others, like you, think it hinges on something else).
And I also have very little confidence that this iteration of SCOTUS will be content to leave abortion entirely under the purview of State legislatures.
I like Damon but tbh inviting him again for the same topic for me just was not much added-value. I would love to hear some pro-life position on this podcast (there are plenty in the orbit, Charlie Cooke, Kevin Williamson, French, Liz Wolfe, or at least some originalist POV). This is very one-sided even though the guys are trying to engage the other side.
I would add Sarah Isgur to that list too. Advisory Opinions with her and David French is always an interesting listen. I still think it was great to have Root back, but I definitely see where you’re coming from.
I think it was mainly due to the timing - hot topic you can invite your competent friend more easily. Also fine if abortion is not discussed that often on the pod (i understand the reluctance) but this way is very superficial, no substantive arguments, no differing viewpoints (also the reason podcast back the when leak came out was utterly low quality with engaging the topic, Nick Gillespie is just not great at this sorry). Welch was also kind of getting out of debating in the comment section last time with excuse “not gonna go into a gotcha fight” or something like that for a perfectly reasonable question on his viewpoint.
One of the best things about Sarah Isgur is you get really good legal analysis and she has a way of keeping David from devolving into his occasional bouts of hauty priggishness. David's response to the Dobbs and the gun case has been a bizarre attempt to say "well actually"
I thought their analysis was very interesting, but I was surprised as how negative they were on both, especially David, and got annoyed at them peeing on my Wheaties. But that's typical of David, never miss an opportunity to in some way demonstrate superiority.
I agree, but I think Damon was the easiest to get on short notice.
I bought Overruled and Glorious Liberty and found them both compelling. But lately when I read about Libertarian Law activism, the cudgel that is the "Due Process" clause seems like a selective weapon that libertarians use to justify their views no matter what they are, as do originalists and textualists or whatever ist. Being ignorant, I am sure I am wrong, but anymore I feel like there is no "principles," just reasoned justification for your preferred outcome. Reasons are but the slaves of the passion.
I think there are principled textualists and originalists out there, but you are more likely to find them in law schools than working for ideological magazines (and I say this as a Reason subscriber!). Someone else mentioned Akil Ahmar, whose books are great and much more sophisticated than Root’s.
One basic test is whether a textualist/originalist can provide examples where the best interpretation does not lead to favored policy outcomes. Some libertarians cling to notion of “unenumerated rights”from 9th amendment as a way to try to make the fed govt protect all “rights” they believe in--including “rights” that were clearly never envisioned by anyone.
Eg, I am pro choice but there is no right to an abortion (or even “privacy” in the Constitution). Roe should have been overturned because it was completely made up. Substantive due process is also completely made up in response to Slaughterhouse cases which killed Privileges or Immunities Clause, which is best textual basis for incorporation of individual rights against states. This is one of many examples where SCOTUS makes bad law to address a prior Court making bad law without completely overturning precedent, which is a definite pattern in 20th century jurisprudence (from Commerce Clause to 4th amendment, etc.) This is why stare decisis is misguided in context of constitutional interpretation and judges should just interpret the dammed text! Basically, Justice Thomas’ position.
Anyway, you can be glad the Court did the right thing here as an interpretative matter and ALSO be upset about women being unable to secure legal abortions as a policy matter. Be upset with the state legislators who are doing that. The Court doesn’t make policy, that’s the whole freakin point.
Also, you can claim to being a textualist/originalist and this is all based on the 9th amendment argument. The problem is, the 9th amendment is, as a textual matter, incredibly vague. There is a doctrine in criminal law called “void for vagueness” that says if it’s too unclear what a provision means, it’s void for violating due process. There is a kind of analogy with 9th amendment, since it’s really unclear what to make of it. The best argument is probably “traditional fundamental rights” and then you have something like Glucksberg test. Or you can just say it’s an “ink blot” like Bork did. I’ve read A LOT of law review articles on constitutional interpretation and I’ve never been persuaded by the “maximalist” position that 9th amendment creates a libertarian legal case for just about any right you can conceive of. Frankly, best historical interpreting is probably somewhat cyclical-federalists trying to throw a bone to the anti federalists, but knowing that it wasn’t going to amount to much in practice.
We should concede that legal interpretation is not an exact science, but it’s not a free for all either. We can try to arrive at the “best interpretation” based on (1) plain text, (3) structural context, and (3) history and tradition (preferably in that order, ie we don’t have to go past text if it’s totally clear.)
It would have been great if they'd talked with Akhil Amar about this. Besides being a preeminent constitutional law scholar, his discussion with Bari Weiss brings up some strong points I haven't yet heard Damon address well: https://www.commonsense.news/p/the-yale-law-professor-who-is-anti
After SCOTUS hands down the last decision of the term in the coming week, it would be great to bring David French on the pod to break things down. He comes from a slightly different than Damon and has expertise in all of the relevant areas the Court had decided cases this week and for the rest of the term--First Amendment and religious liberty, Second Amendment, abortion, plus originalism and the conservative legal movement more broadly
I usually love you guys but this episode was disappointing ngl. I got the vibe that Kmele was the only person who actually read or looked at Alito's decision. I was confused by Root claiming that Alito doesn't touch on his originalist argument about abortion and the quickening-- there's a part of his decision where Alito outlines that argument and explains why he disagrees. Also Alito is very clear that he finds abortion fundamentally different than other issues discussed by the Court because it involves the destruction of a potential life. Root also ignores this part of the decision as well, saying that Alito doesn't have an explanation for why abortion is different than gay marriage or interracial marriage ect. Maybe Root is right about everything he said! But I still feel he came across more as a partisan than as a legal analyst this episode. I love the Fifth Column because you guys are so good at being an independent voice on this stuff, but this episode almost felt Vox-y at times.
Also weird that Root spent so much time talking about the right to the abortion in the first trimester- If Roe just protected that right then it wouldn't be nearly as controversial as it was!
Agreed, mostly. The reasoning of Roe was shit regardless of outcome and that does matter. If first trimester was ruled a constitutional right on 9'th amendment grounds and thereafter the baby considered a person on 14'th amendment grounds then for everyone but the most hardline radicals this issue would be closed and we could all move on.
I have both encouraged people to stay off of social media all while totally not following those same directions. However, I’ve managed to keep my fingers from typing into the idiosphere.
I love Damon (I just finished Glorious Liberty, and it was excellent), but this is a hilariously one-sided take he's providing. There is A LOT to hate about Roe and Casey, even (especially?) for a pro-choice libertarian, but you'd never know it from listening to this episode.
He specifically said (for a second time on the podcast) that there's lots about Roe/Casey to not like, particularly the torturous, dogs-breakfast legal reasoning.
Thank you SO much for having Damon back on for a perfectly-timed recording. There is a lot to love about this episode.
Like many, my Spidey sense tells me the ruling will lead to bad things. The Dems need to resist tying the overruling of Roe into their “democracy in peril” talking point. Heads up: “democracy” — for better or worse — is occurring when state legislatures ban or restrict abortion. Striking those laws down is therefore actually the undemocratic part. And yet, as every first grader used to learn, that is the entire fucking point of the judicial system. (Also, rarely mentioned in these critiques is that the justices in Roe and other approved rulings were similarly unelected.)
I am a lawyer, but not the useful kind of lawyer. I do IP work at a Fortune 50 company. But it strikes me that there is a lot to be said for Damon’s take on the “quickening” being the standard IF these are the legal standards that have been messily developed through precedent. It just seems like the standards are so subjective that perhaps it is no surprise that justices find the answer they are looking for in a given circumstance. While broadly pro-choice myself, Roe is a totally fucked up opinion. As in a lot of areas of life, consistent application of a principle would be nice to see.
Don’t get me started on the FDA and Juul. I don’t smoke, but we are literally witnessing the public health apparatus murder people as far as I’m concerned. Makes no fucking sense. Also the moral panic around vaping occurred — correct me if I’ve got the timing off — at a time when preparing for a fucking pandemic might have come in handy.
Hayek made a distinction between law -- the norms, customs, and traditions that would be enforced even without formal institutions -- and legislation -- the rules that are defined and enforced by formal governing institutions.
Throughout history there have been plenty of laws (by this definition) that I find abhorrent, and I see no inherent moral value in customs and traditions simply because they are customary and traditional. But on a purely functional level, a government that enforces legislation that is more or less in keeping with the predominant laws is going to be more successful and stable than a government that tries to drag society in a direction it isn't ready to go in.
I'm against abortion in most circumstances because I think a person becomes a person at conception (though I'll admit it's a tough question to answer). So on one hand I'm happy with the outcome in Dobbs (I'll leave aside for now the reasoning used to arrive at that outcome).
But it's obvious that there is no broad, cross-cultural, national consensus on what the Hayekian law *ought to be* with respect to abortion, and I'm worried about the destabilizing effect that trying to legislate in the face of that disagreement is going to have. And it's not as if we need more destabilization.
On the other hand, maybe Dobbs could help by freeing States up to pass legislation more in line with the laws that seem to predominate among their people. But in most States there is still plenty of internal disagreement, and I'm not confident that we can avoid nationalizing *any* issue in this current political climate.
But if, like me, you think that abortion has resulted in the loss of millions of innocent lives, isn't this all a risk you have to be willing to take? I think so, but...man, I always thought I'd be happier to see Roe overturned. And like I said, part of me is happy. But I can't shake this sense of foreboding.
I know this much -- I really, really wish that instead of getting bogged down in legalese or going round and round in circles arguing about life vs choice, more people (public intellectuals, judges, politicians, celebrities, random people on social media...) would focus on the question of personhood. I don't think we'd all magically come to some consensus, but at least we'd be cutting closer to the heart of the issue (I think).
It’s easier to rile one’s base with broad strokes, claiming the other’s “true” nefariousness. It’s upsetting to see people using “gender traitor” against those whom look at personhood arriving at conception, even when I completely disagree. There’s humanity & empathy on both sides of this issue and a heartlessness that we are inflicting on those to whom we feel betrayed.
Funny, the thing I care most about in all these incredibly contentious topics is the vapes.
I have had, and continue to have some strong feelings about the fuckery (as I see it) around the satanic panic around vapes. But as a long time smoker, I have grown comfortable with the fact that no one gives a shit about whatever I might think on the topic. I can sympathize as I refuse to identify with essentially anything vaguely resembling a "movement" or some kind of "club", but this thing has always been something that rustled my jimmy with vigor. I have seen so many of my trailer trash kinsmen switch over to vaping from smoking, who are now actually back to smoking cigarettes largely due to this insane attack on the vapes.
Anywho, I could go on for thousands of words on this nonsense, but another thing I have grown comfortable with is doing so generates more shame in me than rubbing one out to bugs bunny in drag when I was a kid. I got what I wanted, but at what cost? Great episode as always!
1) Kavanaugh is saying you can't count to 5 without him. That's what his opinion is
2) Thomas is being consistent. Roe is overturned because "substantive due process" is not a thing, thusly, other decisions reliant on it should be revisited, that doesn't mean overturned. Kavanaugh lays out how. The 14th isn't the only thing that gay marriage is based on, despite what your hysterical guest would have your listeners think.
I'm just saying that you've had Damon like at least twice since you've had David French, and I will continue to bang my spoon on my highchair for a crossover with David and Sarah Isgur for a Supreme Court term wrap up.
Your guest makes the commonly-heard claim that the mere fact that abortion performed before quickening was not punished as harshly (or, in some cases, at all) in English or early American common-law courts somehow gives historical support for the right found in Roe, at least prior to quickening. See, e.g., Aaron Tang, The Originalist Case for an Abortion Middle Ground (September 13, 2021), https://ssrn.com/abstract=3921358. But there is *not a single recorded instance* of a legal text or commentary in English common law or in American law prior to the passage of the Fourteenth Amendment speaking of any “right” to an abortion.
Just because an act was not heavily punished or criminalized at the time of the founding does not mean that the founders considered it a "right" that would be included in the 9th Amendment. In principle, the mere fact that an action wasn’t previously prohibited cannot be the basis for calling it a “right,” or else no new laws prohibiting actions that were previously tolerated could ever be passed. For example, for centuries, our Nation tolerated the smoking of tobacco in its restaurants. Many states and cities nonetheless passed laws prohibiting smoking in public restaurants. There was, of course, no basis for litigants to challenge these new anti-smoking laws by claiming that, merely because it was long tolerated by the law, smoking tobacco in restaurants was a “fundamental right” deeply rooted in our legal history and tradition. Only if there was a longstanding tradition of the law affirmatively protecting the ability to smoke in restaurants might there be even a hint of such a “fundamental right.”
All questions about whether or not abortion is a fundamental right centered around bodily autonomy, all debates about the legal reasoning behind Roe or now Dobbs, are secondary to the fundamental question -- When is a person a person, with rights that a government and a court are duty-bound to consider and protect?
It's a tough question to answer, so much so that a lot of people seem reluctant to commit to any answer at all. But it's also seems to me to be foundational to the concepts that undergird the Bill of Rights and liberalism more broadly.
Ryan, I agree that the "when is a person a person?" question is the heart of the abortion debate. But it is NOT the heart of the legal question the Court was asked to answer in Roe, Casey, and Dobbs. The question is: does any provision of the Constitution take the issue of abortion out of the purview of legislatures by making abortion a "right." If no provision of the Constitution does so, then judges can't just invalidate state laws they don't agree with. Casey (the current state of the law until yesterday morning) said that the phrase "[no state shall] deprive any person of life, liberty, or property, without due process of law" included a right to abortion. I think any reasonably honest interpretation of that clause would conclude that it's about making sure that people receive fair procedures, like the presumption of innocence, notice, opportunity to be heard by an impartial court, or having laws passed through the proper mechanics of democratic lawmaking. I don't think that phrase includes any hidden list of rights. But even if we allow for so-called "substantive due process," the rights that the Court divines from that phrase have to be limited somehow, otherwise the justices would just say anything 5 of them agreed was important was now a "fundamental right." The Glucksburg test does a decent job of finding a principled way to cabin "substantive due process."
It's hard, because I'm very pro-choice. I'm probably FAR to the left of your average voter on this issue. I think a person becomes a person (with rights, etc.) at conception, but that a woman's bodily autonomy should outweigh that person's interest in life until the fetus could survive *without unusual medical intervention* outside the womb. At that point, the woman's autonomy right is less important because she could end the pregnancy by inducing labor and *not* kill the fetus.
Anyways, the point is that my thoughts on abortion (and yours, and Matt's, and Kmele's) are not the legal question. The legal question is only about what the Constitution says and doesn't say. I would be happy to amend the Constitution to add an abortion right, but I just don't think any reasonable person can honestly say that either the framers of the Constitution of 1789, the bill of rights, or the 14th amendment would've understood the words they were putting on paper to have included a right to abortion.
Finally: note that the mere fact that the framers of a Constitutional provision didn't understand that people would take them seriously / at their word is NOT enough to change judicial outcomes such as Loving. I.e., just because the framers of the 14th Amendment might not have *really* meant to legalize interracial marriage, doesn't negate the fact that they wrote the words "[no state shall] deny to any person within its jurisdiction the equal protection of the laws." It says what it says, and Loving, Obergefell, and O'Connor's concurrence in Lawrence are all fully within the obvious meaning, even in 1868, of that provision.
This is a good response to my post. You're right -- courts deal with the law. It's their raison d'etre.
But not all questions are legal in nature, and I really wish that the courts would be more willing to just come out and say "This isn't under our purview. Go sort it out in the legislature". Or even "This isn't under the purview of any branch or level of government. Go sort it out amongst yourselves. Just be peaceful". (Now I'm thinking of many issues, not just abortion).
But instead, it seems like the courts feel compelled to render some sort of conclusive decision, and on these really contentious issues judges twist themselves into knots trying to find a legal justification to support whatever non-legal position they already hold. It's not just legally messy, it's complicit in the long process of the legislative branch basically abdicating its responsibilities.
I guess you could say that Dobbs ultimately does what I want by freeing up State legislatures to set their own rules. And maybe the decision in Dobbs simply couldn't be as simple as I'd like because it had to go through the complicated process of untying the knots that previous decisions formed (I'm genuinely ignorant of what kind of arguments a court can and can't use to overturn a previous decision).
But my impression as a non-expert is that Dobbs muddies the legal waters even more and, in doing so, further obscures what I claim is the central question in the abortion debate (though I appreciate that others, like you, think it hinges on something else).
And I also have very little confidence that this iteration of SCOTUS will be content to leave abortion entirely under the purview of State legislatures.
I like Damon but tbh inviting him again for the same topic for me just was not much added-value. I would love to hear some pro-life position on this podcast (there are plenty in the orbit, Charlie Cooke, Kevin Williamson, French, Liz Wolfe, or at least some originalist POV). This is very one-sided even though the guys are trying to engage the other side.
I would add Sarah Isgur to that list too. Advisory Opinions with her and David French is always an interesting listen. I still think it was great to have Root back, but I definitely see where you’re coming from.
I think it was mainly due to the timing - hot topic you can invite your competent friend more easily. Also fine if abortion is not discussed that often on the pod (i understand the reluctance) but this way is very superficial, no substantive arguments, no differing viewpoints (also the reason podcast back the when leak came out was utterly low quality with engaging the topic, Nick Gillespie is just not great at this sorry). Welch was also kind of getting out of debating in the comment section last time with excuse “not gonna go into a gotcha fight” or something like that for a perfectly reasonable question on his viewpoint.
French and Isgur with TFC would make a great panel on abortion.
One of the best things about Sarah Isgur is you get really good legal analysis and she has a way of keeping David from devolving into his occasional bouts of hauty priggishness. David's response to the Dobbs and the gun case has been a bizarre attempt to say "well actually"
I thought their analysis was very interesting, but I was surprised as how negative they were on both, especially David, and got annoyed at them peeing on my Wheaties. But that's typical of David, never miss an opportunity to in some way demonstrate superiority.
I agree, but I think Damon was the easiest to get on short notice.
I bought Overruled and Glorious Liberty and found them both compelling. But lately when I read about Libertarian Law activism, the cudgel that is the "Due Process" clause seems like a selective weapon that libertarians use to justify their views no matter what they are, as do originalists and textualists or whatever ist. Being ignorant, I am sure I am wrong, but anymore I feel like there is no "principles," just reasoned justification for your preferred outcome. Reasons are but the slaves of the passion.
I think there are principled textualists and originalists out there, but you are more likely to find them in law schools than working for ideological magazines (and I say this as a Reason subscriber!). Someone else mentioned Akil Ahmar, whose books are great and much more sophisticated than Root’s.
One basic test is whether a textualist/originalist can provide examples where the best interpretation does not lead to favored policy outcomes. Some libertarians cling to notion of “unenumerated rights”from 9th amendment as a way to try to make the fed govt protect all “rights” they believe in--including “rights” that were clearly never envisioned by anyone.
Eg, I am pro choice but there is no right to an abortion (or even “privacy” in the Constitution). Roe should have been overturned because it was completely made up. Substantive due process is also completely made up in response to Slaughterhouse cases which killed Privileges or Immunities Clause, which is best textual basis for incorporation of individual rights against states. This is one of many examples where SCOTUS makes bad law to address a prior Court making bad law without completely overturning precedent, which is a definite pattern in 20th century jurisprudence (from Commerce Clause to 4th amendment, etc.) This is why stare decisis is misguided in context of constitutional interpretation and judges should just interpret the dammed text! Basically, Justice Thomas’ position.
Anyway, you can be glad the Court did the right thing here as an interpretative matter and ALSO be upset about women being unable to secure legal abortions as a policy matter. Be upset with the state legislators who are doing that. The Court doesn’t make policy, that’s the whole freakin point.
Also, you can claim to being a textualist/originalist and this is all based on the 9th amendment argument. The problem is, the 9th amendment is, as a textual matter, incredibly vague. There is a doctrine in criminal law called “void for vagueness” that says if it’s too unclear what a provision means, it’s void for violating due process. There is a kind of analogy with 9th amendment, since it’s really unclear what to make of it. The best argument is probably “traditional fundamental rights” and then you have something like Glucksberg test. Or you can just say it’s an “ink blot” like Bork did. I’ve read A LOT of law review articles on constitutional interpretation and I’ve never been persuaded by the “maximalist” position that 9th amendment creates a libertarian legal case for just about any right you can conceive of. Frankly, best historical interpreting is probably somewhat cyclical-federalists trying to throw a bone to the anti federalists, but knowing that it wasn’t going to amount to much in practice.
We should concede that legal interpretation is not an exact science, but it’s not a free for all either. We can try to arrive at the “best interpretation” based on (1) plain text, (3) structural context, and (3) history and tradition (preferably in that order, ie we don’t have to go past text if it’s totally clear.)
His previous appearance was Substack only. It's good they had him on the public feed.
It would have been great if they'd talked with Akhil Amar about this. Besides being a preeminent constitutional law scholar, his discussion with Bari Weiss brings up some strong points I haven't yet heard Damon address well: https://www.commonsense.news/p/the-yale-law-professor-who-is-anti
Two of the articles mentioned in this episode:
"Alito's Abortion Ruling Overturning Roe Is an Insult to the 9th Amendment" by Damon Root:
https://reason.com/2022/06/24/alitos-abortion-ruling-overturning-roe-is-an-insult-to-the-9th-amendment/
"The Hard Problem of Abortion Rights" by Clark Neily and Jay Schweikert:
https://www.cato.org/blog/hard-problem-abortion-rights
After SCOTUS hands down the last decision of the term in the coming week, it would be great to bring David French on the pod to break things down. He comes from a slightly different than Damon and has expertise in all of the relevant areas the Court had decided cases this week and for the rest of the term--First Amendment and religious liberty, Second Amendment, abortion, plus originalism and the conservative legal movement more broadly
I usually love you guys but this episode was disappointing ngl. I got the vibe that Kmele was the only person who actually read or looked at Alito's decision. I was confused by Root claiming that Alito doesn't touch on his originalist argument about abortion and the quickening-- there's a part of his decision where Alito outlines that argument and explains why he disagrees. Also Alito is very clear that he finds abortion fundamentally different than other issues discussed by the Court because it involves the destruction of a potential life. Root also ignores this part of the decision as well, saying that Alito doesn't have an explanation for why abortion is different than gay marriage or interracial marriage ect. Maybe Root is right about everything he said! But I still feel he came across more as a partisan than as a legal analyst this episode. I love the Fifth Column because you guys are so good at being an independent voice on this stuff, but this episode almost felt Vox-y at times.
Also weird that Root spent so much time talking about the right to the abortion in the first trimester- If Roe just protected that right then it wouldn't be nearly as controversial as it was!
Agreed, mostly. The reasoning of Roe was shit regardless of outcome and that does matter. If first trimester was ruled a constitutional right on 9'th amendment grounds and thereafter the baby considered a person on 14'th amendment grounds then for everyone but the most hardline radicals this issue would be closed and we could all move on.
I think we only need 10 more podcasts to get the complete story about what is going on in the Welch household of late.
Tune in next time!
Glad this came out today. This is a serious matter that has been met with wildly unserious reactions. Childlike, even. It’s been a long 24 hours.
I have both encouraged people to stay off of social media all while totally not following those same directions. However, I’ve managed to keep my fingers from typing into the idiosphere.
“Giving money and power to government is like giving whiskey and car keys to teenage boys.”
P. J. O'Rourke
It’s so much worse than that.
I love Damon (I just finished Glorious Liberty, and it was excellent), but this is a hilariously one-sided take he's providing. There is A LOT to hate about Roe and Casey, even (especially?) for a pro-choice libertarian, but you'd never know it from listening to this episode.
He specifically said (for a second time on the podcast) that there's lots about Roe/Casey to not like, particularly the torturous, dogs-breakfast legal reasoning.
Thank you SO much for having Damon back on for a perfectly-timed recording. There is a lot to love about this episode.
Like many, my Spidey sense tells me the ruling will lead to bad things. The Dems need to resist tying the overruling of Roe into their “democracy in peril” talking point. Heads up: “democracy” — for better or worse — is occurring when state legislatures ban or restrict abortion. Striking those laws down is therefore actually the undemocratic part. And yet, as every first grader used to learn, that is the entire fucking point of the judicial system. (Also, rarely mentioned in these critiques is that the justices in Roe and other approved rulings were similarly unelected.)
I am a lawyer, but not the useful kind of lawyer. I do IP work at a Fortune 50 company. But it strikes me that there is a lot to be said for Damon’s take on the “quickening” being the standard IF these are the legal standards that have been messily developed through precedent. It just seems like the standards are so subjective that perhaps it is no surprise that justices find the answer they are looking for in a given circumstance. While broadly pro-choice myself, Roe is a totally fucked up opinion. As in a lot of areas of life, consistent application of a principle would be nice to see.
Don’t get me started on the FDA and Juul. I don’t smoke, but we are literally witnessing the public health apparatus murder people as far as I’m concerned. Makes no fucking sense. Also the moral panic around vaping occurred — correct me if I’ve got the timing off — at a time when preparing for a fucking pandemic might have come in handy.
Hayek made a distinction between law -- the norms, customs, and traditions that would be enforced even without formal institutions -- and legislation -- the rules that are defined and enforced by formal governing institutions.
Throughout history there have been plenty of laws (by this definition) that I find abhorrent, and I see no inherent moral value in customs and traditions simply because they are customary and traditional. But on a purely functional level, a government that enforces legislation that is more or less in keeping with the predominant laws is going to be more successful and stable than a government that tries to drag society in a direction it isn't ready to go in.
I'm against abortion in most circumstances because I think a person becomes a person at conception (though I'll admit it's a tough question to answer). So on one hand I'm happy with the outcome in Dobbs (I'll leave aside for now the reasoning used to arrive at that outcome).
But it's obvious that there is no broad, cross-cultural, national consensus on what the Hayekian law *ought to be* with respect to abortion, and I'm worried about the destabilizing effect that trying to legislate in the face of that disagreement is going to have. And it's not as if we need more destabilization.
On the other hand, maybe Dobbs could help by freeing States up to pass legislation more in line with the laws that seem to predominate among their people. But in most States there is still plenty of internal disagreement, and I'm not confident that we can avoid nationalizing *any* issue in this current political climate.
But if, like me, you think that abortion has resulted in the loss of millions of innocent lives, isn't this all a risk you have to be willing to take? I think so, but...man, I always thought I'd be happier to see Roe overturned. And like I said, part of me is happy. But I can't shake this sense of foreboding.
I know this much -- I really, really wish that instead of getting bogged down in legalese or going round and round in circles arguing about life vs choice, more people (public intellectuals, judges, politicians, celebrities, random people on social media...) would focus on the question of personhood. I don't think we'd all magically come to some consensus, but at least we'd be cutting closer to the heart of the issue (I think).
It’s easier to rile one’s base with broad strokes, claiming the other’s “true” nefariousness. It’s upsetting to see people using “gender traitor” against those whom look at personhood arriving at conception, even when I completely disagree. There’s humanity & empathy on both sides of this issue and a heartlessness that we are inflicting on those to whom we feel betrayed.
Funny, the thing I care most about in all these incredibly contentious topics is the vapes.
I have had, and continue to have some strong feelings about the fuckery (as I see it) around the satanic panic around vapes. But as a long time smoker, I have grown comfortable with the fact that no one gives a shit about whatever I might think on the topic. I can sympathize as I refuse to identify with essentially anything vaguely resembling a "movement" or some kind of "club", but this thing has always been something that rustled my jimmy with vigor. I have seen so many of my trailer trash kinsmen switch over to vaping from smoking, who are now actually back to smoking cigarettes largely due to this insane attack on the vapes.
Anywho, I could go on for thousands of words on this nonsense, but another thing I have grown comfortable with is doing so generates more shame in me than rubbing one out to bugs bunny in drag when I was a kid. I got what I wanted, but at what cost? Great episode as always!
"rubbing one out to bugs bunny in drag"
This is a whole new level of intersectionality.
Classic memories of ‘Wayne’s World’
I liked to think of it as choosing between my stick or his carrot. :)
Huge week for the Maternity Holster Industry
That's pretty funny
1) Kavanaugh is saying you can't count to 5 without him. That's what his opinion is
2) Thomas is being consistent. Roe is overturned because "substantive due process" is not a thing, thusly, other decisions reliant on it should be revisited, that doesn't mean overturned. Kavanaugh lays out how. The 14th isn't the only thing that gay marriage is based on, despite what your hysterical guest would have your listeners think.
Could you guys find an even MORE hysterical and hyperbolic guest next time? The very end of society!
I'm just saying that you've had Damon like at least twice since you've had David French, and I will continue to bang my spoon on my highchair for a crossover with David and Sarah Isgur for a Supreme Court term wrap up.
Are you sure you are not really asking for Jonah Goldberg here?
If you know, you know.
Jonah would be great. I'd love Sarah as well. I'd be happy for a David French break.