Advisory Opinions - The Legality of Israel’s Beeper Attack

Episode Date: September 24, 2024

Notre Dame law professor Sherif Girgis joins Sarah and David to discuss his latest law review article, “Originalism’s Age of Ironies.” But first, the two respond to Rep. Alexandria Ocasio-Cortez’s confusion over international law. The Agenda: —AOC’s questions regarding Israel —What is liquidation? —Living constitutionalism lacks a clear defense in modern discourse. —The role of judges in interpreting law —Asking AI Justices Gorsuch and Kavanaugh questions —Princeton requests corrections Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

It's a new day. How can you make the most of it with your membership rewards points? Earn points on everyday purchases. Use them for that long-awaited vacation. Points never expire, so use them how you want. That's the powerful backing of American Express. On eligible cards, terms apply. Learn more at mx.ca. Ready? I was born ready. Welcome to Advisory Opinions.

I'm Sarah Isger. Special guest David French is here with us. And have we got a show for you? And it is a show. I don't know guys, we'll see what you think. First up, we're gonna talk some more law of war dealing with the pagers and booby traps and terrorism. And get David to weigh in on that.

Next, we're talking to Sharif Girgis from Notre Dame Law School about originalism and its limits and how the current justices on the court are grappling with the limits of originalism and what that looks like for each justice and you know what'll be really fun, David? We finally get to talk about liquidation. Yes. Do you want to just, I mean, what's, what is liquidation? Yeah, so this is a concept that goes back to James Madison, and I'll just

read a couple of paragraphs from friend of the pod, Will Bode, that I think describe what liquidation is, and this term will be important for our discussion with Sharif. So here's Will. James Madison wrote that the Constitution's meaning could be liquidated and settled by practice, but the term liquidation is not widely known. Its precise meaning is not understood. And so, Professor Bode says constitutional liquidation has three elements. First, there has to be textual indeterminacy. Clear provisions could not be liquidated because practice could expound the Constitution but could not alter it. Second, there has to be a course of deliberate practice. This required repeated decisions

that reflected constitutional reasoning. And third, that course of practice had to result in constitutional settlement. That the settlement was marked by two related ideas, acquiescence by the dissenting side and the public sanction, a real or imputed popular ratification. I think that's a really fancy way, Sarah, of saying, if we've done something one way

for a really long period of time, there hasn't been substantial dissent from that settled practice, then that is something that the court can and should take into account. Yeah. I mean, I have read that Madison line so many times and like marinated on the term liquidation and I need someone to liquidate liquidation. So we'll talk to Sharif about that. Yes. And finally, David, we got some answers on the Princeton question.

Yeah. Kind of. Yeah. Yeah, we'll go through that. Yep. We're going to save that for the end. So if you don't want to hear about Princeton anymore, feel free not to because this will be, it'll be a bewildering journey in some respects.

Yeah, in many respects. In many and maybe all respects. With that, David, let's talk about Israel and Hezbollah because it seems to me that Israel through a made-for-movie operation detonated Hezbollah pagers which caused Hezbollah members to then turn to walkie-talkies to try to communicate. They then blew up the walkie-talkies which caused Hezbollah leaders to then have to meet in person to plan an attack on Israel. And then they blew up that in-person meeting

killing 20 of Hezbollah's top leaders. And there has been a lot of hand-wringing from some about whether this violated international law, whether these were booby traps, whether this was terrorism. Most of those conversations haven't really discussed a whole lot of how many rockets Hezbollah had sent into Israel, killing indiscriminately civilians. But I will say, while I find that important to people's motives, perhaps, when they don't mention that, two wrongs don't make a right, you know, just because Hezbollah is a terrorist organization violating the

international laws of war doesn't mean that then Israel, you know, just automatically gets to do it back type thing. So, David, what is okay here? What wouldn't be okay, etc. Yeah. So, what the first thing you have to understand here is that this is a situation that is governed by, as a general matter, is governed by customary international law. There are some treaties that come into play and these treaties have been, the treaty obligations have been expounded in various legal documents, et cetera. What I have found is that the Department of Defense

Law of War manual is probably the best single codified document that takes both treaty law, international humanitarian law, and provides sort of this framework for how to resolve these decisions. So when I talk about this, I'm gonna be talking about how we have interpreted law of war through America's DOD law of war manual. So that's the caveat to start. And so the first blush, the very first response to this was, okay, under traditional targeting

principles, which require necessity, distinction, and proportionality. Necessity means is there a military need for this? Distinction means are you attacking only military targets? And proportional is are you using no more force than is necessary to accomplish your legitimate military aim? This pager attack under that construct passes that basic test with flying colors.

Is there a military necessity to take out a large number of commanders and troops of a military force that is firing rockets at you? Yes, 100%. Was there distinction here? Yes, the pagers that were manufactured, these were not manufactured for civilian use, they were manufactured specifically for Hezbollah use. They were transferred specifically to Hezbollah as part of their military communication system.

These were not consumer electronics distributed in the Lebanese population. So yes, there was distinction. And then was there proportionality? Was there no more force than it was used necessary to To accomplish the military purpose Yes, the the and you may have seen actually videos of some of these explosive charges going off. They were very small charges they were quite obviously designed to wound or kill the person who's carrying the pager and Be relatively safe. You can only use the term

relatively because you're dealing with an explosive for everyone else. And the actual way this unfolded is there were a few civilian casualties, which is horrific. But as a general matter, it might be the most precise targeted strike of a military force embedded in a civilian population in the history of war. So if you couldn't take this on through these traditional criteria, a number of people online and really got this got super amplified by Alexandria Ocasio-Cortez referred to a provision in the DOD manual that governs, mines booby traps, other devices. So here's a provision. It says,

it is prohibited in all circumstances to use booby traps or other devices in the form of apparently harmless portable objects that are specifically designed and constructed to contain explosive material. This prohibition relates to booby traps manufactured resemble items such as watches, personal audio players, cameras, toys, and the like. This prohibition is intended to prevent the production of large quantities of dangerous objects that can be scattered around and are likely to be attracted to civilians, especially

children. So this is referring to the practice that you saw, for example, the Soviet Army famously used in the war in Afghanistan, where it would create children's toys or things that looked completely harmless, and the hopes that regular Afghans would pick them up, cause an explosion, kill kids, kill civilians. And so the law of war implication here is really obvious. And it would apply, for example, if Israel just flooded a bunch of iPhones into, a whole bunch of iPhones, say, into Lebanon that could have been used by anybody. That's clearly what the intention here for this prohibition is,

whereas this was very intentionally manufacturing an instrument for specific military use in response to specific Hezbollah concerns about the insecurity of their cell phone network. These were not just consumer goods spread around. This is not what that prohibition was intended to encompass. If this is not covered by the intended prohibition here, well then what covers it? And then you go from there to another provision of the DOD manual that says the use of mines, booby traps and other devices is subject to the same rules and principles that govern

the use of other weapons to conduct attacks. So again, this is necessity, distinction, proportion. And so that's the general debate. And look, you can see if somebody just reads, the prohibition relates to booby traps manufactured to resemble items such as watch, personal audio players, cameras, toys, and the like, you can imagine why someone would say, well, that's got to include pagers. But they were thinking of pagers as just consumer items. That is not this situation.

This is not the kind of situation intended to be encompassed by that provision. And so that's just the Reader's Digest version, Sarah. Sorry for the monologuing. I think that's helpful, but at the same time, I couldn't help but then sort of look down at my iPhone with concern. And frankly, most other things in my house or my life that are not made here in the United States, and whether we're not opening a new page in the type of modern warfare that we will regret. I understand that this was targeted as best as they could to Hezbollah members who held these pagers, but as we know, it wasn't perfect. They did kill civilians, children included. What would prevent China from doing something like this? And how outraged can we be if they do when we've just said like, Israel did nothing wrong, but yours wasn't quite as targeted? You know,

like, that's a spectrum at some point. Yeah, well, you know, and, and the answer here is, well, for one thing, if you're talking about a China, if you're talking about a Hezbollah, if you're talking about our opponents, we haven't fought an opponent who complied with the laws of war since elements of the Wehrmacht in World War II. So in parts of the Western Front in World War II, there was some rough compliance with the laws of war, although there were a lot of breaches. But I think the issue here on the use of electronics or the sabotage of electronics, Israel may have done a first use by targeting these pagers. But the idea that Israel

opened the door, I mean, China's gonna do everything China can do. Iran is gonna do everything Iran is gonna do. So I'm not as worried about that. However, I would say I am worried about the possibility. And this is just something that a lot of people have been thinking about for a really long time. Not so much the implantation of a small amount of explosives and say around an iPhone battery or whatever. But what people have been worried about for a long time is the use of cyber attacks to do things like force open dams or to shut down power plants. This is something that has been contemplated for a long time.

At some level, you can, as the United States of America say, we're protecting ourselves by Israel not using its capabilities. We just have to protect ourselves. I think this should be a wake-up call, if Israel could do this with pagers, you're really only limited by technology and imagination, what a foreign power could do with our own technology. Yeah, so I mean, I feel like we should be more concerned about things that are being manufactured overseas,

including for instance, the circuits that control the computers that control that dam. Yeah, no, I absolutely, you know, the idea that we need to harden ourselves against cyber attack. Now, the only comforting thing about this is that, you know, there's been a lot of discussion of cyber attacks as part of the key of the, of this new way of warfare. And a lot of Russia's cyber attacks, you know, and Russia was seen as extremely formidable in this context, and Russia's cyber attacks against Ukraine largely fizzled. So there was a lot of hype there and they didn't come through.

However, Israel did. And like you were saying, Sarah, that sequence of plant doubt about cell phones, they moved to pagers, blow up the pagers, move to walkie talkies, blow up the walkie talkies, move to in-person meetings, blow up the in-person meeting. If it was an old Tom Clancy novel, you would say, come on, Tom, no sequence of covert events is ever that successful.

But it is a pretty remarkable operation. You know what else to me makes it remarkable? That it was so unlikely for the pager idea to work, the number of things that had to go right for that to go off the way that it did, feels insurmountable. So either Israel's the luckiest country in the whole world, or they've had 49 other plans of similar impressiveness that didn't go off.

And that's how many creative targeted type attacks that they have going at any one time. They only need one of them to work. Yeah. And it's sort of, you know, some good math law there. If you try enough that are very unlikely, at some point the unlikely thing will happen. And that's what I'm guessing the pager attack was. And I can't wait for the movie. I think the only question is, who's going to star in it? But if you think about, and this is what's so weird about human beings and institutions. Ever since 10-7, there have been some pretty extraordinary Israeli intelligence operations.

Let's not forget the assassination in Tehran, in the heart of Tehran's diplomatic quarter under some of the most secure, the best security Iran can provide. They killed Hamas's leader. And so they've been having string of success after success, but this is only after the most catastrophic possible failure on October 7th. And I do hope at some point there is accountability for that failure on October 7th. All right. And with that, let's move to our special, special guest.

And let's hear from our sponsor today, the state of Utah, about a lawsuit that they are asking the Supreme Court to hear. No doubt we will be talking about this lawsuit on the podcast, but this is an advertisement that is paid for and written by the state of Utah. Did you know that in Utah, nearly 70% of the state's land is controlled by the federal government? In fact, 34% of Utah's total territory is unappropriated land that the U.S. government is simply holding without reserving it for any designated purpose. The federal government's expansive land holdings deprive Utah of a significant amount of sovereignty compared to other states, where Utah is unable to actively manage more than two-thirds of its land. Utah has filed a landmark public lands lawsuit asking the Supreme Court to address

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visit stanforourland.utah.gov. And joining us now is Professor Sharif Girgis from Notre Dame Law School to talk about his latest Law Review article, something we don't say that often on this podcast, which is titled, Originalism's Age of Ironies, coming out in the Harvard Law Review. I want to kind of just start at the beginning of the beginning. Can you give us your brief history of originalism and how we kind of got to this moment to begin with?

Yeah, at least as a modern thing. So bracketing whether it was used way back. I think of it as first, in Robert Bork's form a reaction to the Warnenberger courts and the idea that they were both lawless and unfaithful to the founding so we got to go by the founders intent. Then over time people were like oh what's the intent of a multi-member body and how do we know and besides what was in their heads didn't become law so what we should really do is go by the original meaning, which

is objective and you can read it. And then over time, it turned out that a lot of cases, original meaning runs out or it's not clear. Uh, and so more recently there's been a lot of supplementing with other stuff. The original methods of interpretation, if that gives you a tiebreaker in some cases, the context, which is kind of loose and in different people's hands means different things. And that's kind of where we are now.

If originalism is supposed to be a constraint on judges, right? I mean, this was the whole, this was the reaction to Warren and Berger, that they were unrestrained and simply sort of these nine platonic guardians up on a hill on one first street, divining what would be good for the country. And so originalism conceived as this restraint on judges. And I guess here we are in 2024 and is it a restraint?

Yes and no. So I think it was, I think there were two threads from the being there's a great piece by Joel Alessia who's been on here too. Uh, in city journal that goes into this a little, I think there were kind of two threats. One was judges are not king here. The people are. So we need to find something to tie their hands and here's something

the original something, something. And the other thread exactly etc etc and the other thread was a little bit different it was you know what has authority in our system as higher law it's the original meaning like that's the way to figure out what hat what counts as higher law around here. And the two things can come apart, because it could turn out that the original meaning is super vague or broad. It could turn out in some cases

that the original meaning actually tells interpreters to consult their moral judgments. So some people think the cruel and unusual punishment clause is a little bit like that. So over time, what you find out is that when these things come apart, different originalists take different attacks. And that's kind of what this piece is about.

You know, one thing that I thought was really helpful about this piece was you divide out traditionalism from originalism. And traditionalism is something that can look like originalism. It can sort of from the outside. So what, what is, what is traditionalism as distinct from originalism? And what are some cases or examples that you would point to as traditionalism versus originalism? Yeah, so I've defined traditionalism basically by negation. So it's the uses of traditions, which I think in practice, it usually means political practices

rather than judicial precedents. So what have Congresses and presidents been doing? What have state officials been doing? Either state legislatures or state courts. So that's one part of it. It's that not judicial precedent on point. And the second part of it, again, I define by negation from originalism, just to make it clear where there might be tensions. And I think of it as the reliance on those things, those practices that it's kind of hard to justify from within originalism.

So one way it's easy to justify reliance on practices is if it's incorporated by the original meaning, you know, I mean, so a lot of a lot of rights provisions are supposed to be like that. Like the court says in Heller, the second member codifies a pre existing right that's constituted by practices, leave up to it. Right. That's easy. Second, original, I mean, early practices. So the idea there being that if you know, the Congress that gave you the establishment clause immediately turned around and led its sessions with legislative prayer. That probably means it's not inconsistent with original meaning. Judicial precedents, originals have a theory of relying on that.

So if you count that as practice, it's covered. And then the last kind of tradition, and I think this is a little subtle, it doesn't get distinguished enough, is what a bunch of original scholars like Will Bowd call liquidation. And this is so glad we're talking liquidation. Yeah. It's at first you hear and you think like, Oh, items must go. Like it's not, it's not that it's, it's, uh, it's something else.

I think of it as it's supposed to be the closest thing to judicial precedent, but on the political side. And that's the way that Madison seems to talk about it in Federalist third, 37, I think. So he says, look, when a constitutional provision is vague, and it's inevitable that it'll be vague because language is limited, and this is 4,000 words. It's basically like a long article. When it's vague, you have to do something. And sometimes we defer to the decisions of judges because they hashed it out. They tried to get the right answer and we don't want to disrupt too much.

So to balance, you know, having the laws settled right and having it just settled will defer to past judges. But it turns out you can do the same thing with non-judges. So Marshall talks about this in the case about the National Bank, McCulloch versus Maryland. He says, look, I'm not coming to this with a clean slate. Other actors before me have hashed it out, namely presidents and congresses, and they fought over it. And then they reached a settled kind of practice of saying, we're going to have the national bank. And I can defer to that too. But I think there it's crucial.

And I think this shows up in Madison and in Will Votes gloss on it. It's crucial that there actually have been a debate about it. Like you have to imagine that Congress and the president hashes it out and that, and thought about the interpretive issue and then settled on an answer. It can't just be a practice they backed into. And this is true with judicial precedent too. If a court decides a case but it never talks about whether it had jurisdiction in that case and the parties didn't brief that, nobody seemed to pay attention to it, we don't treat that case as precedent saying that you have jurisdiction in those cases. We say because you know, for all we know, they never thought about it.

So you can't really balance having the law settled and getting it right if those past actors didn't even try to get it right. So I think if you're going to be saying that reliance on tradition is justified by originalism as a form of liquidation because the founders thought you could do liquidation, it needs to be practices that you have evidence that they debate it. And in a, in a past article, look at me, I'm already, I'm already such a good academic constantly citing my past stuff. In a past article, I talked about liquidation.

I looked at all the cases where the court cites long post stratification practices. So these other rationales we talked about don't apply. And where it says sometimes this is okay, because it's liquidation. I think I felt like 60 cases and maybe three or four of them involved actual evidence that there was a debate about the interpretive issue and every other case doesn't.

So to go to your question finally, the part of Dobbs that says, we're looking 100 years after ratification all the way till Roe v Wade and all these states massively regulated abortion so it must have been okay. They're not showing that they don't point to evidence that the state's thought about whether the 14th amendment let them do that or if you know in a lot of cases where like an NFID versus ability is Obamacare, the court says you can't

compel commerce, in that case have the individual mandate to cover, to buy insurance in the name of regulating it. In other words, that goes beyond Congress's power under the interstate commerce clause. And part of our evidence for that is that Congress has never done it before. Well, unless we have evidence that they thought about it, and they decided it would be unconstitutional, they hashed it out, that probably shouldn't carry that much weight. Anyway, so you do it and a ton of rights cases and structural cases. I'll give you one more example just to make it so that

in 2020, there was no 2022, I think it was the same term as like all the big cases, Bruin and Doss, all that in a case called Houston Community College, a unanimous opinion by Justice Gorsuch said, it's OK under the free speech clause to sanction public officials for their comments or sanction. Like, I don't know. I think it was like members of local school boards or something

for their comments of XYZs or because people have been because local school boards have been doing that for a long time and some of his examples were from 2020. So long after revocation and there was no evidence that they had hashed that stuff out. So I think that's what I call living traditionalism. Yeah, I'm so glad that you brought up the discussion of these legislators, because this is something I've been talking about for a long time. These guys are not interpreting the Constitution as a general matter. Now, we might find some evidence from some debates in some places that the 14th Amendment came into play in

the discussion. But the idea that the state legislatures or town councils or however low you want to go were dealing with the 14th Amendment and wrestling with it just strikes me as fantastical. But let me also ask you this, Sharif. Since legislatures are not tasked with interpreting the Constitution, how much weight should be placed on, even if they were debating the 14th Amendment, how much weight should we place on their interpretation of the Constitution? Yeah.

So I think partly it depends on how much we're judicial supremacists and how much they are judicial supremacists. So I think a lot of originalists will hear what you just said and say, Whoa, whoa, whoa, you know, at least the other branches are sworn to uphold the other federal branches, right? Are sworn to uphold the constitution too. So they have an obligation to consider it. Um, it's not just the court's job.

It's maybe it's even a co-equal responsibility just within their own domain. The president needs to make sure that what they're doing is constitutional. Congress should do the same. And so actually, we should give it away. But then you run into the and maybe that was true a long time ago, like, you do see debates in Congress about the National Bank about whether it's constitutional, and with presidents. But I think over time, partly because we've come to think it's mainly or only the court's job to interpret, the legislatures have been doing that less and

less. And the less they do it, maybe as you're saying, the less we should defer to it, even if it's officially in the abstract, they had an obligation to do that, too. And you hear lawmakers say, like, I mean, on both sides of the aisle, well, we'll pass it and let the courts figure out if it's constitutional. Well, if they're doing that, then they're telling you they're not doing con and turp before taking their action. So you shouldn't give it much weight. Wait, I just heard of term con and turp. I love that.

Sorry. Constitutional interpretation. No, I'm going to, I'm going to appropriate that. I'm going to use that con and turp. I love it. It'll save time on the podcast. Yeah, that's a, that I'm going to appropriate that. I'm going to use that. Khan and Terp, I love it. It'll save time on this podcast. Yeah. That's a, that's a hard no from me.

Can we do little originalism baseball cards for each justice? So I just want you to like give your one sentence view of their judicial philosophy and where they sort of fall on a maybe originalism one through 10 liquidation one through 10 traditionalism one through 10, you know, or whatever, you know, scale you want to use. Yeah, so okay. Um, let's start at the, I don't know, the top or the bottom from the original perspective, depending on what you think. So I think Chief Justice

Roberts has it as like one tool in his toolkit. I don't think he thinks of it as controlling. He's not that theoretically self-conscious in his opinions at least. He's not telling us a ton about method. He's not writing separate opinions about method, et cetera. All right. Justice Alito describes himself as a practical originalist, which I take to mean, you know, we should go by original meaning where it's clear and

controlling, but we should not give an originalist argument much weight if it leads to crazy outcomes, or if it's contrary to precedent, maybe his his threshold for just going with the precedent is lower, He's quicker to do that. Justice. Okay, now I'm taking myself out of the ranking game. I'm just going through them. Justice Cavanaugh, I think is a kind of old school work like

originalist. So he's more at the earlier phase of what I described. I mean, he goes by original meaning. But one of his big reasons for going by original meaning is that you should tie judges hands. And so when the original meaning. But one of his big reasons for going by original meaning is that you should tie judges hands. And so when the original meaning runs out, he's looking for something else to tie judges hands. And that shows up in his Rihimi opinion, where he's like, look, when the original meaning and precedent run out, you have two options. You can go by policy reasoning, which is a legit because you're a federal judge, or you can go by history of some kind. So it's not early history, so it's not neat and tidy, but

it's still history and which means it's still because it's political practices. The people's will not mine. So I'm gonna grab on to that. I think Justice Thomas does the same thing, though he doesn't talk about it in those terms. And then, and Justice Gorsuch might tend in that direction too. And then you have Justice Barrett, who I think of as having, in a sense, the most theoretically pure originalism, but ironically, it turns out to be less constraining. So she says, no, I'm only going to go by history if it's early history. So it tells about original meaning or if it's incorporated by the provision, like the pre-radification history with the second amendment.

But otherwise I'm not just going to pick history from like some state legislature in the 1940s. So if I'm not going by that history, I jumped more quickly to judicial, judicially developed tests. And since those tests are gonna have to govern a really wide range of cases, they're gonna have to be pretty general and use words like reasonable.

And even if that means judges are gonna do some policy reasoning, get over it. Like there's no other, there's no other option. You know, that seems to be, that seems to, you know, you hear a few echoes of that. And when Justice Gorsuch talks about this is the role of judgment, that at some point, you're going to get down to, you're going to reach a level where the history, the tradition, whatever you want to say, it

isn't just not going to provide some sort of like digging for gold. You found the buried treasure that contains the exact specific shining golden meaning of the statute or the constitutional provision. And at some point in all of these approaches, you exercise what Gorsuch calls judgment. And I guess, I guess it's how wide or small that arena of judgment is. I think that's right. They disagree about how quickly you get to that stage. And they disagree about whether you should still try

to reach for something that's not your own opinion about what's reasonable when you get to that stage. And that goes to the role of post-replication history for Kavanaugh versus Barrett, for example. Yeah, so let's dive in on Gorsuch, Kavanaugh, and Barrett. Because in a case like Bostock, you have Gorsuch and Kavanaugh on opposite sides, and you have Gorsuch, I think,

really eschewing some of those originalist tools, because I think his is sort of a cascading set of rules. So like, first look at the text, is the text clear? Yes, go no further. And so he is sort of textualist first, originalism second, and if originalism runs out, so be it, then we're done. And I'm wondering if you can compare Bostock and what we learned about the two of them to Rahimi

and what we learned about the difference between the three of them. Yeah, so I think that's right. In Bostock, justice, it matters to Justice Kavanaugh that nobody thought that Title VII barred discrimination based on sexual orientation or gender identity for like 50 years after the Civil Rights Act was passed. And he just thinks if your originalism or textualism in that case is leading you to an

outcome nobody thought was supported for 50 years you're doing it wrong. Like whatever the theoretical niceties are you gotta go back to square one and then he you know he still ties it to the text he says if you zoom out to the whole phrase discriminate against because of such individual sex, you're going to get the vibe that it's about misogyny or about unfair attitudes or assumptions about members of a particular sex. And whatever you think about sexual orientation or gender identity and discrimination, it's not like that. Whereas Justice Gorsuch is like, look, the expectations of people for 50 years are not in the US code. The words are. So I'm just going to go by that no matter where it takes me.

And then in, in Rahimi, I think the back and forth is basically like this. It's just as Kavanaugh says, what I said earlier, which is when original meaning isn't super clear, you know, it just says the right of the people to keep and bear arms. It's pretty general. You should go by, you're either going to have history or the judge's own policy views. And I want to go by whatever history it is, you're either going to have history or the judges own policy views. And I want to go by whatever history it is, even if I don't have a grand theory for why it matters rather than policy. So he will, he's willing to look long after ratification

at what people were doing, even if they debate the constitutional issue, the counterturb issue. Sorry. All right. Um, Justice Barrett says that stuff is not log. Um, so we just have to own the fact that we're going to have to, uh, create judicially managed tests. Justice Kavanaugh would come back at that, I think, and say, well, look, it might not be law like con law that was ratified as a, you know, by the article five process, but at least it's better than judicially managed tests in terms of popular sovereignty because it's political practices. And I think Justice Barrett would basically say

that's not true. So in, on one interpretation of Bruin, for example, the fact that nobody long after ratification passed a law means that you can't pass it now. And I think a gun law. And I think justice spirit would say to that, well, that's not actually popular sovereignty because that is taking one legislature's ordinary lawmaking or their lack of lawmaking and time all future legislatures hands by that, what it was never actually made higher law.

So you're actually dishonoring the popular sovereignty of all future legislatures by tying their hands by what the past one happened to not do. And if you come back at her and say, well, you know, you've got, now you're just going to, to your own judicially managed test of reasonableness, what legitimizes that? And I think she says it's inevitable. She says this in actually a free speech case from this term called Vidal, where she says,

look, with a broadly worded right, like the free speech clause, it's inevitable that you're going to run into a case where you don't have a historical analog. And she thought the dial, which was about a trademark restriction was one such case. And so she says, once you hit a case with no historical analogs, you're going to have to do something else. And basically, this is the only option. So going by historical analogs, in the meantime, it doesn't just lack of theoretical basis, it's just delaying the inevitable. And if you don't like having judges create broad general tests to implement broad rights, you shouldn't have ratified a broad right in the first place.

So, since I feel like now I'm getting to talk to AI Justice Barrett and AI Justice Kavanaugh, I've got a question for them. Yeah. Judge Wilkinson over on the Fourth Circuit when ruling on an assault weapons ban ruling on an assault weapons ban made the point that mass shootings weren't a problem at the founding, that they weren't very good at killing lots of people. You were maybe better off with a knife even. And that, so it shouldn't be any surprise that we don't see legislators doing that kind of debate or that type of legislation in this early post-ratification or pre-ratification history because the problem didn't exist. And so, originalism, properly conceived,

for him, would need to wait until the problem. And this is what I've sort of referred to as the horizontal problem with originalism right now. There's the vertical problem of the level of generality of the analogy that you're trying to find. That's the Rah problem with originalism right now. There's the vertical problem of the level of generality of the analogy that you're trying to find. That's the Rahimi problem of what those laws at the founding where they just, you know, as long as we were concerned

about dangerousness and dangerous people, that's a good enough analogy to what 922-G and all of its iterations are. So we're good on the Second Amendment, vertical. Horizontal is this timeframe of what we're looking at for the history and tradition. And Wilkinson's point is, why would I look to immediate post ratification history on elephant stampedes if there were no elephants? But in 1920, someone brought over a herd of elephants and all of a sudden you see elephant stampeding

laws popping up in all these sorts of different states. And that's what sort of happens when Tommy guns and machine guns and guns that can mow down a lot of people start appearing on the market. So AI Justice Barrett and Justice Kavanaugh, what do you say to this horizontal issue? Okay, I think AI Kavanaugh, what do you say to this horizontal issue? Okay, I think AI Kavanaugh would say, exactly. And that's another reason, another arrow in my quiver, if that's the thing you hold arrows at, that justifies looking long post-traffication. Sweet, I'll take it.

And I think Justice Barrett would say, that's not enough. So it's not enough that the that there's you you find something that looks the same a little bit later. It needs to have legal relevance and when we're interpreting higher law, ordinary lawmaking doesn't have that. So just because it would tie your hands or it looks similar, it looks kind of relevant, doesn't mean that you get to rely on it. Like if you flip the coin, you'd be tying judges hands every time because they could have no policy reasoning they just do heads for the plaintiff tails for

the defendant or whatever for the claimant in the government but that doesn't have legal authority and this is a less egregious version of that I think basically you have I think what whatimi shows, because there's a little bit of revision of Bruin and Rahimi, I think, bring home a tad, or a lot. I'm trying to be charitable. If you ask judge Ho, there's a lot. Chief justice Roberts is great at writing things in a way that's like nothing to see here.

And so Bruin was about historical analogs and, uh, you know, whether there's a historical analog in our regulatory tradition and Chief Justice Roberts and Rahimi says no no Bruin was about the principles underlying our his our regulatory tradition and principles sounds broader so that's supposed to capture even if you stick to original era that's supposed to capture the stuff that the problems that they didn't care about yet but that somehow there's a principal for but I actually think you're just gonna hit a dilemma. So either you're gonna look for if you really trying to do narrow principles which even just despair it says you should try to do because if it's too general you might dilute the right.

You're either gonna look at narrow principles that are like shrink wrapped to fit. narrow principles that are like shrink wrapped to fit the regulations around the founding era. But in that case, you're going to cripple the state's ability to regulate for new problems too much, or you're going to shrink wrap your narrow principles to fit the explicit, the conduct that was explicitly discussed as protected in the past. But then I think you're gonna shrink the right too much for at least for this court's purposes. So either way, narrow principles are either gonna limit the state too much or limit the right too much.

And you're gonna have to go more general. And that more general approach is gonna run right back into the kind of balancing that judges conservative judges feel uncomfortable doing. But I don't think there's really an alternative when it comes to open ended rights. Because kind of, I mean, think about it this way. Why would you go for an open ended liberty as opposed to a more specific constitutional rights? So take in the case of religion, take like the ban on religious tests for office, which

sounds like a ban on just a very specific kind of regulation, you know, regulation that says you have to be Anglican to, to be, you know, dog catcher versus a really open-ended thing like the free exercise of religion. The whole point of the second approach is so that you capture a lot of different kinds of regulation, including ones you don't foresee now. So you couldn't name them to forbid them specifically. But by the same token, you also can't foresee whether the right is going

to be is going to cat if it's applied categorically is going to block regulations that we really need in the future, or that we now think we really need what we didn't in the past, like domestic violence regulations, and Rahimi. So basically the very reason to go for a broad liberty as opposed to a specific riot free exercise rather than ban on religious tests for office is also the reason that you're going to have to end up doing something like balancing as you apply it over time. Yeah. I'm glad you said that because as I was looking at the eight justice majority in Rahimi versus Justice Thomas, which just so amusing to me and it never, it's so funny

that you have eight justices saying, no, no, no, no, you misunderstood Bruin. And then you have the actual author of Bruin going, no, the writer here. Yeah. Yeah. Hey, I meant what I said the, the writer here. Yeah. Hey, I met what I said the first time, but what strikes me is you really do. When you read the difference between Thomas and the other eight justices, it just looks like a different test. So it looks very, it looks very much like a text history and tradition versus a version of strict scrutiny versus a text history and tradition version version of intermediate scrutiny with the strict is you got to find the match you

The surety laws are the way and then You know the eight justices saying no no, no, you got to find the principle And the principle is dangerous persons Can't possess a firearm. Exactly. And that, as you were saying, it just seems difficult to find any way that doesn't at some point get down to that balancing, whatever you want to call it, tiers of scrutiny versus levels of specificity. Yeah. And I should say I'm sympathetic to the motivations of the Justice Kavanaugh view.

I think if you've clerked on any court, but especially on a court that can change the rules, mainstream and change its own precedence, you get, or at least I got this very vivid sense that like, hey, who made you king? You know, you can't, you can't just do that. You've got to, we have to find a way to limit what you get to do.

So I'm fully on board with a motivation. I just think that it's gonna run into problems By design even in court cases when it comes to some rights like the open-ended rights that you get with speech religion And guns and that's why you see these debates popping up in cases like Vidal, which is speech and Rahimi, which is guns and the most, you know, the kind of COVID era regulations of worship. So that's free exercise. Okay, last question. It seems to me that what we're sort of talking about and what the justices are debating is several feet down the originalism whole. Sort of everyone's agreeing that you look to the text first.

You know, sure, we're having some debate between Kavanaugh and Gorsuch of how much you include sort of what that meant to people at the time versus what the text means to us now, but we're definitely looking at the text. Everyone's an originalist to some extent. What happens when the originalism as we conceived it runs out, that's where we're sort of at now. But I think my question is, what is the viable alternative? Not within originalism world, not within these fights, but really on the left at this point, because it feels to me like nobody is really defending living constitutionalism anymore.

And legal realism has become maybe descriptive. You know, judges are just doing politics by another name, maybe descriptive, but it's not a judicial philosophy. Nobody's out there saying I'm a legal realist, and I just do what I want. So aside from these debates, what's out there that someone can pick from? Great. So let me say something about the first part of the question, too. I think, you know, even though we're talking about the limits of originalism and the divergent paths you take when the when you hit the limits based on what motivated you to be an originalist in the first place,

et cetera, et cetera. OK, great. Um, I think this is not this shouldn't be too shocking or scandalous. I think it's basically what happens when originalism goes from the opposition party to the governing philosophy. Because when you're in opposition, you get to just talk about the cases where your method has a strong answer, a strong view. But when you're running the show, you have to talk about all the cases on the docket, including the ones where it kind of runs out. Another thing is that when everybody knows there's an originalist court, then the side that clearly loses under originalism is going to be less likely to take its case to the court. They're just going to accept

defeat in the lower courts because they know it'll be a waste of time. So maybe the fact that it's an originalist court on the one hand means that originalism is less likely to decide the cases that get to it, ironically, because they'll be the close ones. But on the other hand might still be doing work just by blocking cases from coming to it in the first place because if they're clear by originalism, they not going to get there. Okay so that's I think why we're hitting this and it doesn't mean that originalism is doing no work. I think it means that it's not it's going to be harder to use as a positive philosophy than it was as a critique on the apex score in particular supreme court. Right and then so what even when it hits its limits as as you're saying, you got to judge it not by not only by how it does when you hit those limits, but also by what the alternatives

are. And you're also right that people don't generally defend living constitutionalism by those terms because originalism has enough rhetorical authority and political potency that I mean that in a in a general way way like people get it and like it Enough that's why no justice or no judge when they're up for confirmation to the court says I'm a living constitutionalist If you look at academics where they don't have to pass through a confirmation hearing I think the dominant thing you'll find is what they call pluralism, which basically means There's a bunch of different factors, but there's no special hierarchy.

They'll rarely say the original meaning was clearly X and we're going to go against X, but they might be quicker to find the original meaning ambiguous, or they might be quicker to stick to precedents that they like and that are not obviously originalist. And then in other cases, they're just going to say you have to do it in a kind of context sensitive way you have to look at values and consequences and you have to look at principles of fairness and precedent and original meaning and political traditions even if they're not clearly justified by original meaning and that it's um, it's either

Bad because you'll sometimes reach crazy outcomes to give the original meaning or the plain text or whatever kind of trump card or it's unrealistic or it's never what we've really done so obviously in practice if we've always done pluralism pluralism must be okay but it's not a neat and tidy theory and I think that's part of why it doesn't have the rhetorical force and the kind of lowercase p political authority that originalism has. You could never teach someone to practice pluralism as a judicial philosophy. And no two pluralists, I think, would end up in the same place based on purely that judicial philosophy. Pluralism sounds to me a lot like,

look, hire smart people as judges. Thoughtful, wise people. Yeah. It's a little bit of the Breyer model. Yeah, exactly. But it's also, they don't want to say anything goes right now because they don't like

the political moral judgments of the people in charge. So I think that's why you're finding finding to the extent that there is a kind of politically potent push against the court, it's not really about pushing an alternative clean and tidy method. It's more about just saying have the court do less by, you know, so it's a kind of judicial restraint thing, which is where the conservative legal movement was in the early eighties. restraint thing, which is where the conservative legal movement was in the early 80s, or it's a mix up the political moral morality of the court by adding

other justices, have them do less not just by judicial restraint, which means kind of deference to political actors, but also by stripping them of jurisdiction. So having them not even take certain cases at all. And in the worst case scenario, from my perspective, just try to delegitimize them so that they feel less free to do what they think their theory requires or whether when they do that it has less authority in the public square. Sharif Gargis, professor at Notre Dame Law School with his new law review article out, Originalism's Age of Ironies.

Thanks for joining us. Thanks, Sharif. Thank you. And now, we're going to turn to all of the questions that many of you have had about what happened at Princeton for our event that did not actually take place on campus at Princeton. If you've been listening along for the last few episodes, we were invited up to Princeton to speak, and when we got there, we learned our event had been moved off campus.

The students that invited us couldn't really explain why this had happened. Here's what we've learned, and it's so much more bewildering than we could possibly have imagined sitting in that Princeton Public Library on September 16. The university has now made clear that their policy was misapplied in this situation. Not that we should have been allowed to have our event on campus, but that in fact, we shouldn't have been allowed to have our event off campus. But wait, there's more. This is based on a university policy that states, in its entirety, the Office of the Dean of Students

does not permit student organizations to co-sponsor events or activities with non-student entities. There is no definition of entities, nor are there any exceptions to the policy listed on the website. However, it turns out there is an exception. If a university department, like the Dean of Students

or the Political Science Department or whatever else, agrees to co-sponsor the event also, then the event can be held on campus. But the only way you'd know about that rule is if you heard about it from the Dean of Students office since it's not actually listed as part of the policy. We've now had several off the record conversations and respecting those ground rules, David. The university reached out to ask for some corrections.

And again, this just is bewildering. So one, we said that the university said we weren't allowed to have the event on campus, despite the fact that everyone now agrees that the university policy was only misapplied insofar as we should have not been allowed to be off campus either, they believe I misled y'all because I should have said, the university said we weren't allowed to have the event on campus according to students

who asked us to come speak on campus. And it had that conversation with the university. So to be clear, what they want me to tell you is that we learned about not being able to speak on campus from the students that invited us and not from the university itself. I have no idea why this makes this better and not worse, but if you felt misled then I deeply regret that. Well and and let me say we also learned that we are not on campus by being not on campus. That was an additional source of information. That was an additional

source of information. So when the students said to us, we were told you can't be on campus, one thing supporting the students' version of the events was that we were actually not on campus. So, no, so it is very true. It was the students who told us that we were not permitted to be on campus, and the students told us the reason, their understanding as to the reason why. All right. Number two, I said the students were told this information by someone from the council's office. I will clarify that now. The students were not told this information directly from someone from the council's office. I will clarify that now. The students were not told this information directly from someone from the council's office. And in fact, when I asked Princeton University

about this, they say that during the period this event was being planned, the same student affairs staff member and student did discuss both the university's tax exempt status and council in reference to other Wig Clio events being planned. But they make clear that neither the staff member nor the student recall whether this specific discussion included any reference to Princeton's tax exempt status or the university council. So I'll let you just sit with that clarification

and needed correction, obviously. Totally, definitely correction. Number three, they also wanted me to tell you that David and I, as an external organization that we are David, we'll get to that in a sec, did not reach out to the university for comment as this was going on. Instead, we relied on a letter that FIRE sent and a letter that was sent to the president of the

university by a third party. Your guess is as good as mine as to why this was important to them for me to say this, except that they wanted us to highlight their terrible policy earlier? Unclear. So David, this gets to a really fundamental question. Why were we considered an external entity? Because it actually says that a student organization is not allowed to co-sponsor an event or an activity with a non-university entity.

We never asked to co-sponsor anything. A student organization reached out to us and asked if we would come speak, record what we said, and they would allow us to publish that recording, which happens all the time at universities, right? A speaker is invited, that speech is recorded, and it is later published. I did send that question, what triggered the application of this policy to our invitation to speak, as opposed to other speakers whose remarks are recorded and later published. The university said,

Wig Clio is a student organization and student organization policies prohibit co-sponsorship with outside entities. The student organization proposed a co-hosted podcast event, which is impermissible. This policy does not apply to departments and administrative offices. I feel like that just assumes the question asked.

Yeah, so here's the policy. Student organizations may not co-sponsor campus events with outside organizations or entities. In addition, student organizations may not serve as proxy organizations through which outside entities operate on campus. Now, the intent behind this to the extent that there's anything obvious from this policy

would seem to be something along the lines of, if you formed a student group, let's say, students for CPAC, and you decided to say, we're going to invite CPAC to host CPAC on the Princeton campus and sort of use our status as a student organization to gain access to campus. I think that's, you know, something that

would be encompassed by that. CPAC and students for CPAC sponsor CPAC. That would be what a co-sponsoring would seem to be. But we were not sponsoring. We were the invitees to a sponsored event. And I'm just really curious as to what the outside entity was because you're a full-time employee of the Dispatch. I'm a full-time employee of the New York Times. There wasn't a specific full-time employer here. Yes, we record a podcast that is released through the dispatch, but I don't see how

that's any different from, let's say, if I had given a speech and then chose to publish the speech in my Times newsletter. That doesn't mean that that was a co-sponsorship with the New York Times if I give a speech and I think it would be of interest to my readers. And so, it's not evident what that means. And the reality that it's not evident what that means is made plain by all that unfolded here because here because this idea that we were an outside organization that would not, could not be, where nothing could be done at all with us. In other words, you couldn't host the event off campus or on campus when plainly we host, it was hosted off campus, which would be in violation of this policy, but it's not it's very difficult to figure out what's going on

but the policy itself is if If I'm properly describing the intent it could be written better Sarah it could be written better because this is not something that is self-evidently clear that if you're inviting a Podcast to come on campus, that you're co-sponsoring with an outside organization. I don't see how you get to A to B on that. So it's a very bizarre policy. The application here was very bizarre

because it was and wasn't applied because if it was applied for us to be off campus, to not hold this on campus, but it wasn't applied to the off campus event. So it's all very, very confusing. And of course, every university has a policy about the CPAC rule, let's call it, David. Right. And yet we have spoken at dozens of universities at this point and never had this issue come

up. And it's worth noting, by the way, in a statement that the university provided us, they say, nothing in university policies prohibits such a podcast from taping on campus and certainly no partisan politics or tax considerations apply. And you're like, wait, but what? They continue. All that is needed is a department or administrative host. Such arrangements help facilitate many of the hundreds of events that happen on campus each year. But when I asked whether in that meeting where the student was told that this event could not be held on campus, did the department official ever tell that student that the event could be held on campus if the event had a department or university sponsor?

And if yes, did they offer to sponsor the event themselves a department or university sponsor, and if yes, did they offer to sponsor the event themselves or help find a sponsor, I was told the student affairs staff member cannot recall with certainty whether he suggested alternative options for sponsorship of the event. And obviously, it'd be weird if they did because the student didn't do any of that and clearly didn't know about that exception to the rule and the rule is the thing on the website no exceptions mentioned so feel like just you can guess what happened in that conversation based on the fact that we were off campus David although also interestingly

enough we weren't allowed off campus. And that also isn't mentioned in the rule of course. It says they can't host on-campus events. So it very much looks like they showed the student this policy in a conversation that could have included conversations about tax exempt status, maybe the council's office, and that that student clearly left believing

that they could host the event off campus and that there were no alternatives to hosting the event on campus. And David, let me just read some of the rest of the university statement here. During an episode of the podcast of advisory opinions released September 17th, host Sarah Isger made several statements about Princeton University. Among those were assertions that the taping was moved off campus at the university's request and out of legal concerns for the university's tax exempt status. That is false. I'm going to annotate that real quick.

It is true the university did not want the event moved off campus because they actually also were saying that it can't be off campus. So they did say it couldn't be on campus. They're simply contesting the fact that they said it could be off campus in that sentence. And they are saying that out of legal concerns for the university's tax exempt status, though they're not denying that that was raised in the conversation.

The podcast was not, in fact, move off campus at the university's request, again, because they actually don't believe it should have been off campus either. Although it appears that students misunderstood information provided by university administrators in the lead up to the event. don't believe it should have been off campus either. Although it appears that students misunderstood information provided by university administrators in the lead up to the event.

However, Princeton is responsible for ensuring its students understand its rules and the university regrets the miscommunication that occurred here. The university will redouble its efforts to train students about the content neutral rules that apply to student hosted events. Advisory opinions and its hosts are very welcome on campus

as speakers or as the co-host of an event, we wish the event had taken place on our campus. Of course, we're actually, we're welcome on campus, but only if we find a, like only if students were told and then found a department to sponsor it. And they did want to add, Princeton University is committed to promoting and protecting free speech on campus. No invited speaker has been shouted down or denied the right to speak at Princeton since 1970. Speakers in recent years have included Dorian Abbott, Ted Cruz, the Dalai Lama, Mohammed El-Kurd, Delray McKesson, Vic Mensah,

Charles Murray, Rick Santorum, Ilya Shapiro, and Amy Wax. I think that's an interesting sentence because we were literally denied the right to speak on campus. I don't understand a way around that sentence, David. They told the student they couldn't have the event on campus. I believe what they're trying to like be cute with there is that it wasn't that we were denied our right to speak on campus. They're saying we were denied the ability to co-sponsor an event on campus, which is a thing we were never doing.

But that's why they are a lot like they're saying they can still say that sentence because even though we weren't allowed on campus, it's not what I don't know. I think their position is had the students asked for an academic co sponsorship, it would have been granted so that... Except how were the students supposed to know that? Right, right, exactly. So it's a very bizarre situation. It's extremely bizarre. We have never said that this was ideological targeting. We have no evidence that it was ideological targeting.

It was just a very weird situation, a very strange and bizarre application of a badly written policy and a very strange situation overall. I just don't know how you can say we weren't denied the right to speak on campus because there was this exception that could have been invoked but wasn't. Okay, but it wasn't, right? So we tried to speak on campus and we were told that we couldn't.

That's sort of the end. It was kind of up to you guys to come up with the way that we could, but in the end, we had an invitation to speak on campus. We did not, in fact, get to speak on campus because of a university policy. So that's kind of the end. Here's my comms hat, David.

I thought for sure that we would get a very short statement from Princeton University that said, oh, my gosh, we're so sorry. This was a huge misunderstanding. You of course should have been on campus. We can't believe this happened. It will never happen again. Please come back.

We would like to host you for a university wide event or blah, blah, blah. That is not the response that we got. Like this never should have happened. It's the dumbest thing. It never should have happened. Yeah, yeah. That I, just from a comms perspective, this was a weird way to handle this guys. Like blaming us and blaming your students

and that nothing went wrong here, right? Like we were not denied the right to speak at Princeton. Okay, so that's the story with Princeton and we are putting an end to that chapter. Next up, we are speaking at Duke University, on campus actually, University of North Carolina as well, both on October 7th, if you're in the area. Also, all on campus. They have the same policy, by the way.

We're not co-sponsoring anything. So weird, weird that Princeton didn't just say, this was misapplied, we're so sorry. Y'all weren't co-sponsoring anything. This never should have, they've never said that. They in fact stick by the fact that we were not to be allowed on campus. And yet other speakers can record their speeches and publish them.

That's fine. Just not this. Don't know why. Makes no sense. Still no answer. It's just, it's bizarre. I'm more befuddled than angry. Yeah.

It's just, yeah. Anyway, I hope that's that. And very sorry to the students who were dragged into this. You guys did nothing wrong, nothing wrong. And I know this was probably very stressful for them this week. So the end. And next up on advisory opinions,

we have some very cool circuit cases to discuss. And David, this is it. The long conference is coming. We will have our last non-Supreme Court episode later this week. I'll explain Long Conference in a little more detail, and we'll go over some of the circuit cases bubbling up next on Advisory Opinions. Oh, oh, oh, oh