Advisory Opinions - The Argument for Originalism

Episode Date: April 12, 2022

Sarah and David address the very interesting announcement that Elon Musk won’t be joining Twitter’s board, including the clues about the reason that are not-so-hidden in Twitter’s announcement. They also discuss the acquittals in the alleged kidnapping plot of Michigan Gov. Gretchen Whitmer, and they talk to Catholic University law professor Joel Alicea about his new law review article, “The Moral Authority of Original Meaning.” Sarah ends the podcast with an interesting question.   Show Notes: -Joel Alicea: “The Moral Authority of Original Meaning” -“Why We Are Restless: On the Modern Quest for Contentment” by Benjamin Storey and Jenna Silber Storey Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we've got a great, if eclectic, Advisory Opinions Podcast for you today, because we're going to start off with some

really interesting legal issues, and then we're going to move much more philosophical with a guest, Joelle Alisea. Did I pronounce it correctly, Sarah? You did. From Catholic University, who's starting a new center, who's the honorary chair of it is none other than Samuel Alito. So that's going to be a fun conversation. I think you'll enjoy it. But we're also going to talk a little Elon Musk. I don't know if we've ever talked about him on this podcast, Sarah. We have not to my memory.

No. We're going to talk a little bit about the verdicts in the Gretchen Whitmer trial, the trial of those who were alleged to have plotted to kidnap Gretchen Whitmer trial, the trial of those who were alleged to have plotted to kidnap Gretchen Whitmer. And then Sarah has a mysterious question for me at the end. We'll see if we have time. Yeah. Yeah.

All right. So Sarah, I'm going to read you a statement. And this is going to be what we in the law school world would call an issue spotting exercise. What read between the lines here about Elon Musk? Well, wait a minute. It's not reading between the lines. Read the key.

I'm going to read the message and you tell me the key lines. So Elon Musk, for those who don't know, bought about 10% of Twitter, just bought it like you and I go and buy groceries. He just bought some Twitter. Like an impulse purchase of chocolate at the end of the Trader Joe's line. Exactly. And probably less consequential to him and his overall financial picture than that, but he just bought some Twitter and then he proceeded, because this will be relevant, to begin tweeting a lot about Twitter. And let me just say trolling the company that he owns 10% of. So then there is a note to Twitter from Twitter. Team, Elon Musk has decided not to join our board. Here's what I can share about

what happened. The board and I had many discussions about Elon joining the board and with Elon directly. We're excited to collaborate and clear about the risks. We also believe that having Elon as a fiduciary of the company where he, like all board members, has to act in the best interest of the company and all our shareholders was the best path forward. The board offered him a seat. We announced on Tuesday that Elon would be appointed to the board contingent on a background check and formal acceptance. Elon's appointment to the board was to become officially effective 4-9, but Elon shared that same morning that he will no longer be joining the board. I believe this is for the best. We have and will always value input from our shareholders, whether they are on our board or not. Elon is our biggest shareholder and we will remain

open to his input. There will be distractions ahead, but our goals and priorities remain unchanged. The decisions we make and how we execute is in our hands, no one else's. Let's tune out the noise and stay focused on the work and what we are building. I think I kind of cheated in my test. You cheated a little, except here's the one part that you did not provide bold underline to with your voice. Okay. Here's what I can share about what happened. He didn't say, here's what happened or let me tell you what's going on. Here's what I can share. So obviously the word fiduciary in this statement is everything. You can get sued if you're a board not acting in the best

interest of your shareholders, which means helping your company make money, or to put it a different way, not undermining your company from making money, for instance, by tweeting negative things about how much the company sucks through the weekend. Which, interestingly, David, he has deleted all of those tweets and instead has put up a tweet with an emoji that I find to be a little unclear. It's the hand over mouth emoji, but I don't know if it's like a oops or a I'm going to be quiet. Like I'm a little unclear. Of course, the contingent on a background check is interesting because I'm not totally clear what in particular they would be looking for in a background check that would be relevant to being a board member. Perhaps you have ideas on that? Yeah, I don't know.

Yeah, I don't know. I mean, a background check, I believe it would imply is it's going to imply much more than just doing a criminal background check. Like if you're purchasing a weapon, in other words, it would involve a searching inquiry, I think, of your personal life to see if there are any issues out there that could be embarrassing or damaging to the institution. I'm sure you look for blackmail issues. You look for financial conflicts. You look for criminal stuff. I'm a little confused by that, honestly, but it's fascinating that they included it. I know. That's why I even hate to even raise this sort of thing about looking for black marks or red flags or whatever, because it's just complete grotesque speculation. But they put background checks in there. They didn't have to do that. But yeah, the fiduciary angle of this is the one I think that is absolutely most relevant. this is the one I think that is absolutely most relevant. I'm looking at his tweets and he has one of these. This is April 9th. That's still up on his profile. Most of these top accounts tweet rarely and post very little content. Is Twitter dying? Yeah. So that would be not in the interest of the shareholders. David,

let me just paint you a scenario of what could have happened behind the scenes that would lead to a statement, that paragraph on the fiduciary interest issue. For instance, if you get sued by a shareholder for not acting as a member of the board in the fiduciary interest of the company, perhaps there could be an indemnification clause. But that indemnification clause might have said that the board gets to review and approve all tweets going out from your account. Right. In order to ensure that you're acting in the fiduciary interest of the board. And that, for instance, I could imagine leading to a no thank you.

Yes, I could easily imagine that. And then that leads to an interesting question to me. How much longer does he own 10% of Twitter? And now when he bought 10% of Twitter, Twitter stock went up and he could immediately sold 10% of Twitter and made a lot of money. But if you're just the guy, the tweeter with the most Twitter stock, I'm not sure what that gets you really, to be honest. And there was another part of this that was interesting. And there was another part of this that was interesting. The decisions we make and how we execute is in our hands, no one else's. I took that as a final middle finger lofted into the air against Elon Musk, because there's been a lot of speculation that he bought the 10% to sort of

come in and shake things up and change things a ton. And this is saying, actually, you don't run anything. You're not on the board. You're not an executive of the company. You don't run anything. Well, you know what Musk can do with nearly 10% of Twitter, though? If he can find some allies who also own some of Twitter or rally other Twitter shareholders, he can replace all the members of the board with people who he believes share his interests, but he still will no longer need to act in the fiduciary interest of Twitter. They will, those board members that he handpicked, but he can handpick the whole board if he wants and still tweet whatever he wants. I think that's where this would head if that's what he wants to do. I don't know why he'd want to be on the board in the first place. The whole point of these takeovers is to put someone else on the board. Yeah. Now, and I do think it would be, as a practical matter, challenging to get another 40% plus of the shareholders. Not impossible. Not impossible.

It's certainly when you're starting with a base of 10%, it's a lot easier than if you're starting with a base of 1%. Shareholder activism, man. It's a thing. It is a thing. It is a thing. All right. All right.

Next. Yes. All right. All right. Next. Yes. All right. Last week, there was a trial of four members of the crew that was alleged to have plotted to kidnap the governor of Michigan, Gretchen Whitmer. Now, some of our listeners have been following this very closely. have been following this very closely and you're going to be upset because we're not going to spend a lot of time on it because, well, because we have a guest. Also because it is not incredibly complicated. The essential defense that was offered by the plotters was, well, a key to their defense was the concept of entrapment. In other words, as more emerged about this plot, it became evident that the FBI was involved in it extensively

throughout. Now, this is something that's actually not all that uncommon. If you follow FBI prosecutions during the war on terror, you will find numerous occasions where the person plotting to engage in a terrorist act was plotting essentially with FBI agents the whole time. with FBI agents the whole time. In some cases, you'll find that FBI agents found individuals who seem to be what have terror-leaning sympathies and sort of said, hey, you want to do some terror? And they said yes. And then the whole thing is they're just interacting with the FBI all the way up into the FBI, providing them with, for example, with inert bombs and things like that. the FBI providing them with, for example, with inert bombs and things like that. So you'll see it most often, by the way, in weapons purchases, whether it's bombs, illegal guns, that's when you're most likely to be talking to an FBI agent.

It would appear from many of these prosecutions. It is stunning how many of these people end up talking to the FBI about their due crimes plans. end up talking to the FBI about their due crimes plans. But David, what's unusual about this case versus all of those other cases, I can't think of a single one of those other cases where the entrapment defense worked. It rarely works. It rarely works because the entrapment defense, to be clear, is not a but-for defense.

Right, it's not, well, I never would have done this if the FBI wasn't involved. It's much more of an inducement defense, and almost, it's not my plot, it's the FBI's plot that I've just been sort of brought in, that I'm, it's almost as if. I am a passive member of this plot. I am not a driving force. I am not taking overt steps. But just because the FBI is in your plot, just because they were the ones providing you the guns.

If you take the guns, ask for the guns, pay for the guns, move the guns, doesn't matter. That's not entrapment. You wanted to commit the crime and they were providing you the means to do the guns, doesn't matter. That's not entrapment. You wanted to commit the crime and they were providing you the means to do so. It's quite different than a viable entrapment defense where they say, hey, do you want to go commit this crime? And you're like, yeah, maybe, yeah. And they're like, I've got guns. And you're like, okay. And they're like, I'll be here with the guns. Will you meet me here? And you're like, yeah've got guns. And you're like, okay. And they're like, I'll be here with the guns. Will you meet me here?

And you're like, yeah, yeah, I'll meet you there. And then you get arrested. Well, that's not enough. Right, right, exactly. So that means that there was a ton of evidence introduced of deep, deep FBI participation and perhaps direction of this to result in, let's be clear about what happened, two acquittals straight out and two hung juries. So when there's a hung jury, there's an opportunity to prosecute again. So we'll see what happens. But as of right now, of the six federal charges

brought in the Whitmer case, two guilty pleas, two acquittals, and two hung juries so far. So that's where we are. A stunning loss for the federal government, by the way. You just don't see them lose like this. I think I've said this before. By the time DOJ brings charges against you, your likelihood of success has dropped so precipitously. And I think this is a philosophical debate that the department should have more often. The department's philosophy is not to bring the cases that should be brought. The department's philosophy is to bring the cases they can win. And so the whole point is that they don't bring cases that they think they'll lose. Set aside sort of the moral component of like, look, maybe we're going to lose this case,

but we need to show the public that we care about this crime or that we believe the person did it. Obviously, the Department of Justice doesn't bring cases that they both think will lose in the person's innocent. But if you think the person's guilty, but you think there's, you know, only a 49% chance you'll win, the department doesn't bring that case. For the most part, the department thinks you're guilty and they think there's a 60% chance they'll win. The department doesn't bring that case. We're looking at most of the time, the department thinks there is an 80 to 90 to 100% chance they'll win that case before they file. Now, the higher profile, the lower that number can go. But I assure you, they thought it was well over 50%.

So a shocking loss for DOJ. Yeah, yeah. And just as a final bit of practical advice, just to echo what I saw Jane Koston write some time ago on Twitter, if you're talking to somebody about guns or bombs, you're talking to the FBI. That's what I said. Yep. Yep. Exactly. Exactly.

Well, let's move on to our guest, Sarah. Can you introduce him? Our guest is, well, now he's assistant professor of law, Joel. But to me, he was just 1L Joel way, way, way back in the day. Joel Alisea went to Harvard Law School. I know that will shock no one. But from there, he worked at Cooper and Kirk, a law firm that pod listeners will be familiar with. Tiny, tiny boutique that seems to have hosted everyone you've ever known. And then clerked for Judge O'Scanlan on the Ninth Circuit, Justice Alito on the Supreme Court. He is now a professor at Catholic University where he has just launched and is the director of the Project on Constitutional Originalism and Catholic Intellectual Tradition. And I know it will come as a surprise to everyone

that the honorary chairman, is that his title, Joel? Honorary chair of the advisory council. Yeah, that would be one Justice Samuel Alito, aka the spicy. But we are here today to talk about a law review article that Joel has written in the Notre Dame law review, the moral authority of original meaning. And normally David, we do not spend a lot of time on law review articles in part because I fall asleep. Um, but this one is particular and not just because Joelle wrote it and I have a special place in my heart for him at all times, but,. But because it goes back to something we've talked on and off about on this podcast, which is the pushback within the

conservative legal movement against originalism, textualism, basically the whole thrust of the conservative legal movement since the Federalist Society started in 1982, coming from what I've been calling the Vermeule wing. And we're going to dive into all of this. But before we do, we're going to define all of our terms. We're going to have a glossary, an AO glossary. And Joelle, you're going to be our dictionary. So here are some terms we need to define. And you can take them in whatever order you want. Originalism, common good constitutionalism, and natural law. So take it away. I'm already loving this conversation so much. Welcome, Joelle.

Well, thank you both for having me on. I'm honored to be here. And it's great, of course, to be with you, Sarah. Those three terms are important to define in part because they are contested terms, right? And so the definitions I will give, I'm sure people would disagree with just as a preview to that. Originalism can be defined all sorts of different ways, but I think that a conventional kind of definition of it would be that government officials are bound by the meaning that the Constitution had at the time that it was ratified. And that could be viewed as the

meaning that it had in terms of the founder's intent, the ratifier's intent, or its public meaning. There are all sorts of variations on originalism, but just kind of its core conventional definition, right, is we're bound by the meaning that the Constitution had when it was ratified. So like, for instance, if the word literally was in the Constitution, we take it to mean what literally meant more than 10 years ago instead of now, where the dictionary literally defines literally as not literally.

Yeah, that's right. That's right. Or to give an example that's often used in the literature, you know, the phrase domestic violence, which appears in the Constitution, had a different meaning when it was employed then than obviously it does now. Fair enough. OK. Originalism. Check. Next. Natural law is notoriously difficult to define, but I'll say that the best way to kind of explain this would be to say in our day to day lives, we have to make decisions about what to do. And when we're trying to make decisions about be to say, in our day-to-day lives, we have to make decisions about what to do. And when we're trying to make decisions about what to do, we are employing practical reasoning, the reasoning about practical things. How are we going to live our lives? The natural law is

the application of our reasoning to those situations to figure out what is and isn't permissible, what is and isn't reasonable, you know, logical. And that means that there are some things that are just always impermissible, some things that we are required to do. And those conclusions or principles are drawn from human reason. And that is what the natural law consists of. It consists of these principles and in some cases, conclusions drawn from human reason to guide our action and day-to-day life. Now, of course, there are a lot of things that reason doesn't dictate a unique answer to. And those things would not be directly dictated by the natural law, right? They're just things that we determine as an exercise of prudence in day-to-day life. And how does natural law interact with religion? So I think that many natural law theorists would argue that the natural law stands on its own

because it's just a product of human reason, and therefore you don't need to be a theist in order to subscribe to the natural law. Certainly the natural law tradition goes back before Christianity, but there are many natural law theorists who are themselves Catholic or theists in some sense and infuse the natural law tradition with theism and show that faith and reason can go together. All right. Natural law. Check. Next. Common good constitutionalism. So this is a constitutional theory put forward by Harvard professor Adrian Vermeule. And he recently came out with a book by that title to try to explain the theory better. I think that the theory is really complicated

and multifaceted. And so I think that reducing it to just a couple of sentences is tough, but I'll just say that- But nevertheless, it's what we're gonna do. It is what we're going to do. But look, I'm an academic, so I always have to caveat these things. You're just going to have to deal with the caveats. I think the core of Professor Romuald's

theory is that positive law, like the US Constitution, should be interpreted in light of moral principles drawn from the natural law tradition. So, for example, judges would be able to directly bring to bear in interpreting the Constitution moral principles that they perceive to be drawn from the natural law. And part of his theory is that originalism doesn't always lead you to the moral outcome, and therefore originalism is so deeply flawed as to need to go into the trash bin of legal theories. And we should instead, instead of applying originalism as a way to parse how to apply a lot of facts, we should apply

what the moral end is. I'm trying to sort of get to like how he distinguishes why originalism is bad. Sure. So I think that the most plausible articulation of Professor Vermeule's view would be to say, we should interpret the law in light of moral principles. That means that where those moral principles would lead to an outcome different than where the original meaning would lead, we can cashier the original meaning. In fact, we must cashier the original meaning and interpret the text to better accord with those moral principles. And crucially, those moral principles can be brought to bear in interpreting the law, regardless of whether the original meaning of the Constitution embodies those moral principles or authorizes direct resort to those moral principles.

So David, when you and I first talked about this, I said that this must be satirical because no one could possibly believe that basically this amounts to a version of authoritarianism in my view, because it's all about who gets to define what is the moral good that we are seeking. And for some reason, Adrian Vermeule thinks that's all about who gets to define what is the moral good that we are seeking. And for some reason, Adrian Vermeule thinks that he's going to get to define what the moral good is, and therefore that's silly. And I thought almost a Bentham-esque critique of the authoritarian wing of the conservative party, it appears that either it's a really long troll, which I still could be. It is not. I'm just going to go ahead and say it is not.

It's like the one thing on this podcast you've been really right about, David. I just want to acknowledge that. Well, at least there's one thing. At least there's one. Okay. So here we are, David. We have defined our terms. at least there's one. Okay. So here we are, David, we have defined our terms. Yeah. So there's another term though, that I think is linked to this, which is also thrown in the debate. Um, and this is often used as somewhat of a stand in for originalism, Joel, um, but not precisely proceduralism, proceduralism, and which is sort of a, it's kind of a, it's kind of a slur, to be honest, that essentially what the constitution does is it's, it's a procedural document. It is a morally empty document, uh, into it that creates a set of procedures such as,

uh, a neutral public square for, uh, one of the sort of procedures of the constitution would be that there is a, there is a level of neutrality, the constitution that is incompatible with natural law, incompatible with the common good. And, you know, to one thing about Sarah's point, I would say a natural law theorist would say, no, natural law is not, in fact, subjective. It is discernible. Natural law is discernible. And is that something, when you're looking at the literature, what is the common objection? So steel man for a minute, So steel man for a minute, the non-originalist common good constitutionalism objection to Sarah's authoritarian accusation. Wait, that was a kind of a twisted answer.

No, it was good. Let me make it. Steel man Vermeule for us. Give us the best of Vermeule's argument. Yes. Steel man Vermeule. Sure. So I think that he would make a couple of points in response to Sarah's criticism. I think he would first say, look, the application of moral principles to interpret the law is actually inevitable.

It's impossible to really interpret the law, in hard, at least, without applying moral principles. In cases where the text just doesn't provide a determinate answer, which Vermeule would say is a lot of situations, I think, then you have to apply moral principles to resolve those questions. So any idea that we can somehow divorce interpretation from moral reasoning is just false. I think that would be his frontline point. I think his second point would be to say, well, then where should we derive those moral principles since they're inevitable? Why don't we derive them from the traditional moral reasoning that undergirds the entire Western tradition and the American tradition as well? And those moral principles go back millennia through the

natural law tradition, all the way back to even before Christianity. So why don't we rely on those? Now, again, I think it's really crucial to point out that notwithstanding Professor Bernoull's repeated invocation of historical tradition, he is quite emphatic that he does not think judges should, and others should rely on these moral principles because of their historical pedigree, but that they apply directly in interpretation of their own force by dint of the natural law. Review article taking apart this and why originalism itself has that built-in moral authority because self-government has a moral authority, even if an individual legal outcome may not come out the way that Adrian Vermeule likes. Right. So I think that Professor Vermeule places a lot of emphasis on the importance of the substantive outcomes in cases according with the natural law and with reason, and it's appropriate to have that emphasis from the

natural law tradition. But I think he largely overlooks, even though he acknowledges in passing every now and then in his book, I think he largely overlooks a second major component of the natural law tradition in thinking about the obligation of law, and that is legitimate authority, the allocation of authority among actors within a system. And the natural law sets boundaries as to how a government could allocate authority among different actors in a system. But those are pretty broad boundaries. Within that, different societies can allocate power within their constitutional systems

as they see fit as an exercise of prudence and just good judgment. And in our particular constitutional system, I think it's clear that under Article III, federal judges are just not given the authority to bring moral principles to bear in interpreting the Constitution, unless the Constitution itself authorizes that sort of resort to moral reasoning. And in some cases, it does, I think, clearly. And in other cases, it may. There's a debate about that. But I think the ultimate question in our system is, as a historical matter, what authority does a judge have in a given situation? And that itself is ultimately founded on a moral base in that the natural law tradition holds that the ultimate political authority,

the ultimate authority to constitute a regime, does reside in the people at large. And if that's true, then in order to respect their legitimate authority, we have to interpret their commands in the Constitution, their allocation of power within their constitution, as they themselves would have, which requires a resort to originalism. So that's sort of, is that the heart of the originalism is good, actually, argument? Because one thing that I have encountered time and time again, and I'm encountering this morning, because I wrote a piece that's in The Atlantic about why Republicans turned pretty dramatically on free speech rights. Here we are trying to plug Joelle's law review piece, and David just can't help but plug

his own Atlantic piece. I know. David, David. I'm sorry, but it is like half my podcast. So, um, that, you know, so, so essentially I, I completely get the argument that, wait a minute, that the structure itself is virtuous. The structure, in other words, that this is the structure defined by the people. It places, it properly places authority in different spheres according to the will of the people. But there's an awful lot of argument now that originalism and original public meaning in

particular is yielding negative outcomes. In other words, it's protecting or enshrining things that violate or offensive to natural law. Not to refer back to a debate that occurred at your own institution in 2019, but I spent way too many hours of my life thinking about something called a drag queen story hour that I hadn't really ever heard of. the drag queen story hour that I hadn't really ever heard of. And some of the constitutional common, common good constitutionalists would say a structure that could theoretically protect a Liberty to engage in that kind of behavior can, is going to be innately offensive to natural law. In other words,

if originalism yields that, then originalism, regardless of its sort of structural virtue, is going to have such a negative outcome that it can't be consistent with natural law. It can't be consistent with any reasonable moral law. And therefore, virtue has to win out in the end. Yeah, I think that that argument carried to its logical conclusion would just be the obliteration of the principle of legitimate authority, right? If the argument is simply, we have an imperative to always create a system that can guarantee the right outcome from the natural law perspective. The only way that would be even conceivably possible, setting aside the fallenness of humanity, would be if you did not care about lines of authority. But once you impose limitations on authority,

it necessarily follows that there will be some outcomes that a given actor cannot prevent, right? Even if that outcome is bad. And Aquinas is quite clear that there are circumstances where the natural law tradition requires a judge, for example, to allow an outcome that the judge knows is not just, right? He talks about this, for example, with respect to criminal trials and, you know, judging according to evidence as opposed to what the judge privately knows to be true about the guilt or innocence of a defendant. And so there are situations where

just because of the importance of legitimate authority and restrictions on authority, which is itself a moral principle, right, drawn from the natural law, there will be outcomes that are not in accord with the natural law. And as I said, if you're going to deny that, then you're just denying that we can legitimately restrict the authority of various actors in our system. You know, one of the ways I've tried to put it is that the existence of the liberty can be a positive good even if the liberty is not exercised in a virtuous way. In other words, there is the existence of the liberty.

The existence of the free speech right itself is not a morally neutral proposition. That free speech itself is a virtue or is a blessing, a blessing of liberty, however you want to phrase it. blessing of liberty, however you want to phrase it, that the existence of a liberty can be a positive good, even if an exercise of it yields something much worse. Due process. Let's move away from free speech. Due process. The existence of due process is a positive good in accordance, say, with natural law, even if a consequence of due process is a murderer walks free. That doesn't violate principles of natural law if due process yields that result. Is that kind of, in a way, what, say, Aquinas would be arguing in the judicial context? Aquinas would be arguing in the judicial context? So I think that your point, which I agree with,

is a distinct but also very important point, right? Your point wasn't so much that there are these restrictions on authority that are themselves based in moral principle. It was more a substantive point about due process being a positive good, a good thing in and of itself. And I agree with that. And I think that that's an additional reason why in some circumstances you could have a moral principle that is itself correct when applied to a given fact pattern, yield an outcome that seems at odds with what we would think would be the just outcome, right? That can happen too. And so I think that part of the upshot of what we're talking about here is just that these are more complicated questions, that the natural law is not just some sort of, you know, equation where we just put in, you know,

moral principle and positive law and we get to correct moral outcome, right? And I'm not, I should say, I'm not attributing that to Vermeule, but I do think that there is a debate going on right now where a lot of that kind of simplistic language and thinking is deployed. And I think it's important to instead say, no, the natural law tradition is rich and vibrant and complex. And therefore, understanding how it applies within the context of our particular American regime with our distinct history, our distinct constitution, and our traditions is complicated. And it can't just be reduced to to we need the right outcomes in cases.

Okay. So now I want to get to the other side of this, which I've started to think is maybe more of a horseshoe than a linear line here, which is if legal conservatism for the last 40 years has been about process, as much as I think others have now used that to attack it, originalism is a process. It is not the outcome of getting to the right answer. Due process, obviously, is about process, unless we're talking about substantive due process, I suppose. I think that Vermeule, in its most simplified form, is about outcome. And I think that Vermeule in its most simplified form is about outcome. And I think that the liberal tradition of interpreting, you know, Supreme Court cases, the Constitution has been about outcome. And I'm curious if you can compare and contrast Vermeule's sort of outcome-oriented theory of interpretation, legal interpretation, with the left's theory of legal interpretation.

Great question. Right. So a couple points there. I do think Vermeule's theory is very focused on outcomes. And I think he makes that very explicit in contrasting his view with originalism in a blog post he had on mirror of justice a few years ago when he was criticizing Josh Hammer's common good originalism. And in his explanation of why originalism and common good constitutionalism, his theory are incompatible. He focused on outcomes and said that the outcomes are what drive this. So I think that's right. I don't think originalism is pure proceduralism. As I said, I think it's rooted in substantive

moral principles. But to finally get to your question, I think that Vermeule himself has been quite open about how his methodology is very similar to the methodology of a very famous legal theorist associated with the left, Ronald Dworkin, which has kind of been the most rigorous and most defensible version of living constitutionalism in the academy for the last 40 years is Dworkinianism. And Vermeule is very clear that he embraces Dworkin's method, but substitutes different moral principles that he's bringing to bear to achieve different outcomes than Dworkin would have, right? So I think by Vermeule's own accounting, his theory is very similar to those on the left, at least in its methodology, even if not in its theoretical grounding and the moral principles it brings to bear. But then this is where I get to my authoritarianism point. Maybe that's overstating it a little, but the left's living constitutionalism is all premised on the idea that therefore we need what we would now call progressives as judges

who can determine what that good is that we are seeking. And it's not particularly grounded in anything except that judge's brain. And therefore, someone coming into court or someone prophesying what would happen 10 years from now going into court won't know because it will depend on how our moral sense in progressivism has evolved 10 years from now. Same with Adrian Vermeule's theory in which it's all based on what he thinks that moral good is that we're seeking. And I understand the argument that natural law maybe exists outside of Adrian Vermeule's brain, but maybe so does progressivism in a sense. But in reality, not philosophy textbooks, that to me sounds very much like authoritarianism where you cannot judge the law in advance or separately because it is all about

who gets to define what that end result good is. And that to me is the difference with originalism and why I actually still, I do not think the proceduralism attack is a negative one. Yes, because the process is the moral authority. The process is the good. And the good is that you can know what the law is as a lay person without knowing the judge, so to speak. And originalism isn't perfect. And I think plenty of people will say, yeah, but that's not how it's working. Yep. I get that too. But at least there's a theory versus just saying it's up to what Adrian Vermeule or Ronald Dworkin think are quote unquote good. And that that will change 10 years from now. Yeah. So I, I do think that, um, as you acknowledge, Professor Ramil would say, well, the natural law tradition is objective and it depends on what reason ordains. And so I'm not just kind of searching my own guts to figure out what I'm doing here.

But I do think that what you said, Sarah, does find echoes in Aquinas' own writings, right? Aquinas does say, at one point he takes up the question if judges should be judging according to law or kind of on a case-by-case basis. And he says it's better for them to be judging according to law. And one of the reasons he gives is that it's just more likely that the judge will get it wrong in the individual case than that the legislature or whoever is the organ that actually takes a broader view of the situation, not on a case by case basis, but promulgates the law for all in a general sense. That the legislature is more likely to get it right than the judge in the individual case would. Precisely for the reasons that you can imagine, right? Judges can be swayed in a given case when you have facts before you that are very sympathetic. And so you would be, you want to do something for this particular person, but that might actually be contrary to the common good to vindicate this particular plaintiff's claim rather than just applying the positive law as is.

So I think that your concern, which is a prudential concern about human beings and their tendency to be swayed in given situations toward what would actually not be in the common good, that does find real resonance in Aquinas in his thinking about the judicial role. All right. We need to let Professor Alisea get to molding young minds here. But David, you have a couple of good wrap-up questions? I have one question that has been kind of a bit on my mind, and that is during some of the debates that I've had over these issues, common good constitutionalism. So this new a a more a newer right wing sort of theory of the power of the state writ large, whether it is the power of a judge or a justice. To defy original public meaning for the sake of natural, you know, their perception, natural law or the common good, whether or to a theory of the state that, you know, if you look at the theory of state power that Ron DeSantis has, for example, it's not that different from Elizabeth Warren's theory of state power. They would just use that power for different ends. And one thing that kept popping

up in a lot of this discussion is that one of these views, in other words, the view, the sort of common good constitutionalism, was more consistent with Catholicism and traditional streams of Catholic thought. And the other view, which the original public meeting view or a more limited government restraint stance is more consistent with traditional streams of Protestant thought. And I've rejected that. I've rejected that in part because I'm quite familiar with a concept called Protestant dominionism, which basically makes Catholic integralism look like libertinism. But I'm interested as to your view on, A, the state of play in this debate.

Is common good constitutionalism a more consistent, is it a more, not consistent with Catholicism, but sort of a theme within Catholic legal thinking? What is the state of play within the Catholic legal community on that debate? And where do you stand on the Catholic versus Protestant debate on the origins and sort of essential nature of originalism? That's a big question. Those are big questions. To take what I took to be your first point, which was about the administrative state in particular, right, and the consolidation of power. I do think it's important to point out that Professor Vermeule's theory, while it kind of purports to be representative of the natural law tradition, is quite idiosyncratic in many ways. And one of them is his strong endorsement of an administrative state.

I'm not at all denying that there are natural law theorists who would have endorsed a strong administrative state, but the natural law tradition, as I said, puts in place just broad boundaries on what the allocation of power within a regime is. And so to insist that such a broad and powerful administrative state is just so clearly in the interest of the common good seems to me to just be more of a feature of Professor Vermeule's own administrative law background and his unquestioned expertise as an administrative law scholar than it is actually a feature, an essential feature of the natural law tradition, or certainly of any sort of Catholic intellectual tradition. I don't think there's any contradiction at all between a Catholic natural law theorist

adhering to the natural law and also advocating a restrained and smaller administrative state according to the original meaning of the constitution. So I think that a lot of this has just been, a lot of this debate about the relationship between the natural law tradition and the administrative state has just been inflected by the fact that the principal exponent of the common good constitutionalism theory is himself an administrative law scholar who has always defended a very robust administrative state. And I think we'll leave it there. If you want to know more, we're putting Joelle's law review article in the show notes. You can go click on it, or stay tuned for all of the activities happening at Catholic

University Law School this fall with the new center. Joel, plug the center again. Thanks, Sarah. So the project on constitutional originalism in the Catholic intellectual tradition is launching its programming this fall, and we're launching with an inaugural lecture by Justice Alito at the Columbus School of Law. And the purpose of this whole project is to explore the relevance and the relationship between the Catholic intellectual tradition and American constitutionalism more broadly. So exactly the kinds of issues we've been talking about here for the last few minutes, that is what this project is going to explore. And do you think that Justice Alito's speech will be spicy or extra spicy as he launches

your center? I don't want to predict that, but past is prologue on a lot of these things. Thank you so much. Congratulations. Congratulations. And I wish you the best. It's a tremendously worthy. It's a tremendously worthy project. And thanks for joining us. Thank you. Really appreciate it. as the best gift giver in the family?

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This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off,

plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. And that was great of Joelle to join us. Any thoughts on the interview before we move on to your question of me? I think we need to book some time to talk about this horseshoe problem that I see. And I think we need someone from the left, from the Dworkin-y side,

to come on and talk about how they see the differences between what has now really emerged as three schools of thought, Dworkin living constitutionalism, legal conservative originalism, and legal conservative natural law common goodism. I think that would be a fantastic conversation because we often get the question from listeners, well, what exactly is a progressive jurisprudential theory of the Constitution? And we'll use the term living constitutionalism as a shorthand for it, but to have it explained at greater length, I think, from an actual architect and advocate of the position, I think would be great for listeners, and then they'd be able to more clearly draw these distinctions.

I think that's a fantastic idea. My only concern about the Joelle interview was it was just too short. You know, I'll be interested to see AO listeners slash members who are going to comment on this podcast. We tend to be very practical on this podcast. We don't do a lot of philosophy. very practical on this podcast. We don't do a lot of philosophy. We'll see how much people like the philosophy side of law versus the practical consequence law. I'm more practical consequence, I got to tell you, but we'll see. Well, I think and argue a lot about philosophy, but because I litigated for 20 years, I'm always filtering it through practical consequence. filtering it through practical consequence. One thing, Sarah, that used to happen to me a lot was when you file a high-profile religious liberty case, you get a lot of input during the case from academics. They will email you and they'll say, why don't you try this argument? Why don't

you try that argument? And for a long time, there have been a small constellation of academics who have emailed and sent messages to litigators saying, you need to try natural law arguments when asserting these cases. And I would always respond, well, that's fascinating, but where's my precedent? You know, I'm arguing to a judge, usually a lower court judge or a court of appeals judge, I'm arguing to a judge, usually a lower court judge or a court of appeals judge, that this ruling must be that we should win because law and precedent says we should win. If you substitute law and precedent for natural law, you know what you're going to do? You're going to lose because natural law is not a precedent. So David, I just finished the first philosophy book that I have read in since college. Okay.

Other than maybe my husband's very into philosophy. He was a philosophy major. So sometimes he makes me like read portions of like Camus, the plague or something. I don't know if we're considering that philosophy, but it was called why we are restless on the modern quest for contentment by Benjamin story and Jenna Story. And it basically split into four parts. So it was really easy. It's Montaigne, Pascal, Rousseau,

and Tocqueville. And it talks about how Americans have this Montaigne view of, you know, immediate pursuit of happiness type idea. And, and you know, just enjoy what you're eating and then enjoy that you're sitting here and enjoy looking at the flowers. And like, that is where you should get your happiness from. And that, that lack of sort of otherness of our happiness of duty as a happiness, uh, as a source of happiness is why Americans are not content, why Americans are so restless, because that is not built into our culture. And Tocqueville obviously writes a lot on that issue. And anyway, I thought it was a pretty good book, a philosophy book for people like me who maybe aren't that into philosophy, and I'll put it in the show notes. Oh yeah. Fascinating. All right.

So you had a question for me? I do. This is a dating question having nothing to do with Caleb. Okay. Well, poor Caleb, because he's getting so much wisdom from us otherwise. I know. All right. Here's the question. Advice that young women get often, and even perhaps some older women in the dating world, is that it is not only okay, but in fact, preferable for the man to love the woman more than the woman loves the man. The idea being that he needs to be more invested because he won't have those institutional ties to the marriage, the relationship, that if he feels like he's won this prize, he will be a better husband, whereas she will find contentment through her children, through his love, through, you know,

and maybe I'm giving away too much because I really think that a lot of women subscribe to this theory that it's a, you want to make sure that he loves you a little bit more than you love him. Because if he feels like he's settling in any way, he will wander. It will lead to unfaithfulness. And it's the Chris Rock thing, right? A man is only as faithful as his options. And you want him to think that you are his best option and are his best option. Curious, David, what you think about that advice for women?

I'm going to immediately coin a term. We'll call that the say-anything fallacy. Do you remember the movie Say Anything? Yes. It's true for basically every movie like this. Every movie, he likes her more than she likes him, and we're told that's the making of a good fairy tale. Yeah, it's the John Cusack holding the boombox outside the window and this notion of the pursuit, you know, the pursuit of the man.

And essentially, in many ways, almost just like the acquiescence of the woman. OK, she'll come around to it. You're right. No, the pursuit is such a huge part of this theory that he needs to constantly feel like he's in pursuit of her love, even in the marriage. The last, I would say that's such toxic advice. It's almost hard to even quantify how toxic it is because the last thing you want is a guy to feel perpetually insecure in a relationship and that it is not in fact romantic that somebody is sort of trying to be in in this sort of sense of constant pursuit because you know what people will get tired of it

they they don't want to be in pursuit of their spouse for 25 years. Yeah, but what about all these men who will constantly say when they're accepting some award, and I have to say it just grates on my ears, I married up, I tricked her into saying yes. That is that philosophy put into aphorism. If you want an unbelievable rant on that topic, I should just set down my headphones, walk downstairs and ask Nancy French to come up here. It bothers me so much.

Well, there's two aspects of it. Let me just channel Nancy. One, they're lying. Okay. One, they're lying. They do not, in fact, believe that their spouse is, quote, unquote, the better half. Even if they're in a wonderful, wonderful marriage, they're going to think, I just love my wife. And we're not grading who's the better of the half. We just have a great marriage and a great relationship. And the other thing is 90% of guys, when they say it, they're talking about one thing, and that is physical appearance. Let's just be honest. 90% of the time when you hear the married up, I outkicked my coverage, whatever you want to say, it is completely about physical appearance.

you want to say. It is completely about physical appearance. And for me to put on sort of my feminist ally hat, a subtle manipulation that says your appearance, your continued outstanding physical appearance is very important to me. Yes. And then in fact, I don't need to be good looking because my qualities are earning more money, being more powerful, being better in other respects. Yours are how you look. Right. Right. Yeah. No, I find it incredibly annoying. I know we're going to hear from people in the comment section that like, well, I say that, but I mean it in a really nice way. This is not to say you don't. Of course you do because you've heard other people say it and it's just sort of like the societally accepted thing. But, um, I will say the number one

cause of divorce in my friend group is women who, um, married someone beneath them in some respect, thinking that his adoration of her would create loyalty, faithfulness, all of these good qualities in the marriage. And in fact, it bred resentment on his part and not always infidelity, but either infidelity or such deep unhappiness and resentment that the marriage couldn't survive. There's even a, I don't know, I'm going to coin another term, but it's not entirely original. So they had the say anything fallacy also bleeds into the smoking hot wife heresy, which is popularized after the Talladega Nights movie and Ricky Bobby in the prayer, thank God for his smoking hot wife. And then a preacher before NASCAR race, thank God for his smoking hot wife. And then a, a preacher before NASCAR,

a NASCAR race. Thank God for his smoking hot wife. And there's actually even this sort of controversy within evangelicalism over that somehow having a quote unquote smoking hot wife is like your reward for being a good Christian guy. And so that goes back to the outkick my coverage thing and the married up thing. Yeah.

Yeah. Not a fan, not a fan of that whole line of thinking. All right. So I know there are some women out there listening to this and it's just like my number one dating advice to women right now is this idea that like settling is like a moral good for your marriage. Okay. Now the slightly explicit rating.

So if you have young kids in the car, maybe don't listen to this part. Sex is actually important in marriage. And if you're not attracted to the person, you don't like the sex now, ladies, it's not going to get any better. And you shouldn't have a marriage that is based on friendship and partnership only. Only. That's not actually a good idea. And this is all part of that same idea that like, well, he loves me enough.

I'm not that attracted to him. Yeah, I mean, I don't like the sex, but like that's not what marriage, that would fade anyway. Passion goes away. I just need a friend and a partner. I think that's bad advice. All right. David's not going to weigh in on sex being important in a marriage because he is turning beet red at the mention

of this thing that by definition, David, we all know you've done at least twice. Okay. All right. Deep discomfort radiating. He's so red, y'all. Oh, gosh. All right. Well, that's a spicy ending to the Advisory Opinions Podcast. Thanks so much for listening. You can hear the discomfort. It's in your voice. We'll be back Thursday, hopefully not talking about that. And in the meantime, please write us on wherever you get our podcasts and please subscribe and please check out thedispatch.com.