Live From George Mason

Recording live at George Mason University, David and Sarah open with a critical WAP correction ...

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Recording live at George Mason University, David and Sarah open with a critical WAP correction to last week’s show, followed by updates on The Onion amicus brief and the never-ending Yale drama. Plus: Amy Coney Barrett takes on Common Good Constitutionalism and the Fifth Circuit decides a “zero-pence case” on religious coercion.

Show Notes:

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  1. Avatar photo
    Hawks Law Office

    David & Sarah:

    I am just getting caught up on my AO podcasts, so this comment is past its "sell by" date, and you will likely never read it. Still, I want to push back on David's assertion (around the 27:40 mark) that there was no "non-disruptive" option in Dobbs. To the contrary there was an alternative ruling in which the pro-life side would have won by losing and the pro-choice side would have lost by winning.

    Here is the key: Roe ruled that the fetus is not a legal "person" under the 14th Amendment, but the Supreme Court has never addressed whether a state can grant fetal "personhood" under its state constitution (a 10th Amendment issue). Significantly, the fetus is not a "person" in Mississippi, whose voters in fact rejected fetal "personhood" rights in a statewide referendum in 2011.

    To use David's phrase, the Dobbs court could have "cabined Roe to its facts," ruling that Roe only applies to states which have not granted fetal "personhood" under their state constitutions. Mississippi would have lost, but the pro-life side would have "won" because abortion issue would have gone back to the states to decide fetal "personhood" as a political and/or constitutional issue in each state.

    This would certainly have scrambled the politics of abortion, but it would not have been "disruptive" in the way that I think David means. None of the "trigger" laws would have taken effect; state legislatures wishing to ban abortion would have had to revisit the issue in a much more deliberate and nuanced way (likely discovering that the 10th Amendment reserved this issue "to the people," thereby requiring a state constitutional amendment); and the reaction on both sides would have muted as there would have been no clear "winner."

    P.S. I was going to raise this point with both of you at the Naples "What's Next" event, but alas, an act of God intervened.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Creative but it doesn’t quite follow for me. Roe established an unenumerated constitutional right to abortion. So even if states had the authority under the 10th amendment to establish fetal personhood, scotus still would have to decide which constitutional right wins—the state or the individual—which means deciding whether roe was correct. And then you’re right back where we started.

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      1. Avatar photo
        Hawks Law Office

        Sarah, thanks for replying!

        I agree with you that the Supreme Court would ultimately have to decide the 10th Amendment issue, and I also agree that it would likely allow states to grant fetal personhood under the 10th Amendment, taking us back to where we are now.

        But that is precisely the point of my post: if the Dobbs Court had done this, it would take years for the issue to come back up to the Court, during which (1) no trigger laws would take effect (except in Alabama, which already has a constitutional fetal personhood provision); (2) the debate in each state over whether to adopt fetal personhood state constitutional amendments would be much slower, presumably more deliberative, and certainly more contested; and (3) the "disruptive" impact (both legally and politically) would have been greatly diminished.

        I think this difference between states that recognize fetal personhood and states that do not is important because of the difference between provisional rights and protected rights. A provisional right only becomes protected if the government interest fails to meet the applicable level of scrutiny. As we discovered during the pandemic, even an enumerated right like the free exercise of religion can be unprotected in certain circumstances.

        I raise this point because Rehnquist conceded in Casey (with White, Scalia, and Thomas concurring) that women *do* have a provisional liberty right to abortion (505 U.S. at 966), which I think is correct because in the absence of fetal personhood, abortion does not violate anyone's rights. Rehnquist just thought that this liberty right was subject to rational basis scrutiny and thus easily overcome by the state's interest in fetal life.

        My counter to Rehnquist is that in the absence of "fetal personhood," where the state is *not* using its police power to protect any person's rights, Roe and Casey are more closely aligned with cases like Meyer, Pierce, Griswold, and Lawrence, all of which applied some form of heightened scrutiny. Limited to their facts in this way, Roe/Casey were arguably correct when decided, but certainly not egregiously wrong, so they deserved favorable stare decisis treatment since Mississippi had previously rejected fetal personhood. (All points made in my amicus brief: https://www.supremecourt.gov/DocketPDF/19/19-1392/192609/20210916131541917_41445%20pdf%20Hawks.pdf).

        Now back to more AO podcasts ....

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  2. Avatar photo
    Ben Connelly

    David, with all due respect, I wish you would stop paraphrasing Scott Alexander’s point about liberalism as a “technology” to end wars of religion. While I haven’t read Rawls, I believe Alexander borrowed this argument from John Rawls and I find it a narrow and misguided one that confirms the priors of a very specific worldview.

    It may or may not be a correct characterization of John Locke, but it completely misses the boat for at least many of the most important American founders. Madison wasn’t a Rationalist, despite the attempts by some to characterize him as such. If anything, he likely got more from classical (Roman and Greek) writers and Machiavelli than he did from any liberal rationalist. I don’t think he saw himself as implementing a modern technology designed to engineer societal outcomes. Alexander and Rawls appear to be engaging in a kind of retrofitting to make themselves out to be the heirs to the Founding, or to make the Founders out to be just like them if the Founders were here today.

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  3. Andrew.Wimer

    Thanks for reading my statement about the Novak case! The flagship podcast again lives up to its status. Looks like the conference date for the case will be in early January. Before then, there may be some additional interesting amicus briefs.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Normally I asked permission but decided this was a unique situation where it was also literally your job:)

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  4. Emma Busby

    Matt Lauer (verb): To lock someone in a room, the door to which is operated by a secret button.
    Example: The judge Matt Lauered us, so we had to listen to a prayer before trial.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      I love this. (But adding allegedly since this is a legal podcast lol)

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  5. Rsdailey

    I never realized that Bucee’s was pronounced BUCK-EES. I’d always thought that is was BU-SEES.

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  6. Avatar photo
    Bill Dyer (aka Beldar)

    In general I agree with UCLA Law Prof. Eugene Volokh's views on the subject of Judge Ho's boycott, which I believe is profoundly misguided: https://reason.com/volokh/2022/10/12/yale-law-school-judge-ho-neutrals-and-secondary-boycotts/

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  7. Avatar photo
    Dr.Justin.Perry

    I have to admit, I am not at all surprised at the sheer creativity of the UVA Law School, given the coiner of The Naw Dawg Doctrine was a postdoctoral fellow at UVA too. UVA exudes far more creativity than the Yales and Harvards of the world. :D

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      Gibby

      And who was the coiner? 😉

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  8. Avatar photo
    BWG

    Ads, ugh. I highly valued the lack of ads when The Dispatch was on Substack. Will these ads continue for members?

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    1. Avatar photo
      Ben Connelly

      Hmm. I didn’t have ads. Listened on Apple podcasts though. But that’s surprising since it used to be the other way around: ads on apple podcasts and no ads on Substack.

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  9. Avatar photo
    Charles

    I subscribe to the private RSS feed for members (the one that doesn’t include ads in the episode). But this episode hasn’t hit my podcast player yet (as of 5:30pm 10/12/22). Will that feed continue to work? Or did the migration to the new site break it?

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  10. Kroneborge

    Important note, the listeners are never screaming "make it stop" to this podcast. Although they do chant "emergency pod" when big news comes out.

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