The Argument for Originalism

Sarah and David address the very interesting announcement that Elon Musk won’t be joining Twitter’s ...

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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:

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  1. Avatar photo
    Daniel Standage

    I definitely enjoyed the philosophical bent to the episode, and continued to enjoy every last plot twist until the very end. 😀

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    Daniel Standage

    Sarah and David discussing secks and fulfillment in relationships: based or cringe?

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    Scott Stefanski

    Great episode, really enjoyed it. This isn't related to the episode itself, but I know y'all look at the comments, so... question: A while back there was talk from Steve Hayes about a Sarah Isgur book club, unless that was the result of a fever dream that I deluded myself into thinking was a thing. Assuming I didn't imagine it, what is the status on that?

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      Sarah Isgur vertical-nib Author

      funny timing. we just signed the last contract and are very very close to announcing all the details....

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        Charles

        Hurray! My wife and I have been waiting for this since I got that email a couple months ago promising it would be here “next month” (I.e. March). I’m relieved it didn’t die and I hope you got a solid contract for it. I’m so pumped!

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        Scott Stefanski

        Wonderful! I'm looking forward to it, obviously.

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  4. Kathy Kattenburg

    I loved Sarah's ending question. I have heard the "I (or he) married up" comment many times, and it always means "I married a beautiful woman."
    It's such a backhanded compliment, and insulting to every woman hearing it.

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    Young Riprock

    I liked this episode but I want to push back on the idea that it was different than normal AO. What makes AO special from most other legal podcasts is that it is descriptive first and normative second, as opposed to normative first and throw descriptive out the window.

    Even with professor Alicea, where the discussion might have been more philosophical, it still led with descriptive explanations: how these legal philosophies are similar or diverge regardless of merit. And only then moving into his normative views after a good-faith explanation of what the entail. The conversation was very much in the AO tradition. And it’s what makes AO great. Start with where things are, talk about how the majority, concurrences and dissents got to where they went, the respective strengths and weaknesses, and what the decision means in the future for similar issues or other areas of law.

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    Dan

    Sex is important in a marriage only when one assumes that one is going to live forever, and be healthy and young the entire time. And this is the norm and the precedent, which validates Sarah's point.

    All I can do is state that, having been widowed now 5 years, I don't miss the sex with my late wife. I miss the loss of my best friend. So I can say with confidence that sex is important for a time in a marriage--but without that deep underlying friendship, a marriage is only as deep as the mutual sexual attraction, and only as strong as that attraction lasts. Church and religious doctrine are only as strong as the lack of options that prevent people from leaving crappy marriages.
    Wedding vows won't prevent people from abandoning their spouses. Parental bonds won't prevent parents from abandoning their dying children. Ask me how I know that, if you dare. "God" and Church and Nation have much less power than one thinks when confronted by mortality. It's only that deep friendship, that agapic love, that can be used to find the strength to stand day after day by the bedside of a dying spouse.

    So... I think David and Sarah are both right in denouncing all those silly cultural proclamations and dating theories. But I would say that discounting platonic/companionate marriages does marriage itself a disservice. In the end, that platonic/companionate bond is what will bring your lover to your hospital bed, and why they will stay there.

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    Young Riprock

    HOLD UP HOLD UP HOLD UP. Is it pronounced Ver-mule-ee? Because I have passed on literally dozens of “Bernoulli's principle” puns on Twitter because I concluded that they did not rhyme and thus did not work.

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      Sarah Isgur vertical-nib Author

      Nope. It’s vur-mule rhymes with fur, then the animal.

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        Young Riprock

        Thank you. That’s what I thought. Crisis averted.

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  8. Xander Kastan

    Sarah,

    As someone who is very interested in linguistics, I have to respond to your characterization of the figurative use of the word "literally" as relatively recent. I am not a person who uses the word in this sense and I don't actually like it, but I do accept its use by others as perfectly reasonable.

    You must already have been aware that this usage is more than 10 years old. But you may be surprised, as I originally was, that it is at least 250 years old. Also, the people who have used this sense of the word in writing include F. Scott Fitzgerald, W. M. Thackeray, Charlotte Brontë, and Charles Dickens.

    (I won't ever forgive Meriam Webster for their Orwellian addition of a usage note about the phrase "sexual preference" having nothing to do with actual usage, presumably for political reasons related to the Amy Coney Barrett confirmation hearings back in 2020. That is egregious enough that I feel the need to mention it any time I use them as a source. I also want to know if anyone is aware of similar issues in their usage notes to any other words.)

    Having given that disclaimer, their article on the word "literally" says it all perfectly:

    https://www.merriam-webster.com/words-at-play/misuse-of-literally

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  9. Centrist

    David & Sarah - great podcast as always. I wanted to shed some light on a topic that appears unfamiliar to you - the pre-onboarding requirements for public company board members. I speak from the perspective of having served and over a dozen boards. Background checks are “standard operating procedure” before adding a new board member. They typically include not just criminal background checks, checks for civil litigation, address validation checks, and reference checks with prior boards and/or employers, but also require verification that whatever degrees you claim to have received are actually valid. In the past, directors have lied about what degrees they actually have, and from what universities. It would have been VERY unusual for Twitter’s board to NOT do a standard background check as a matter of course. It doesn’t matter that Elon is already on a public board, or any other number of public boards, it’s a necessary requirement without which you potentially open yourself up to legal jeopardy.

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      Sarah Isgur vertical-nib Author

      Yes. Our point was that including that line in the statement implied that they found something or want people to think it was particularly relevant in some way...its unclear why that would be the case. But who knows!

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      1. Centrist

        In my experience, most likely boilerplate which the corporate lawyers always insert, rather like the standard boilerplate associated with financial announcements, which always remind you that forecasts are... forecasts (and therefore, as predictions of the future, subject to judgment, estimates, etc etc etc). Even if this was a message for internal use only, the Chief Counsel and likely their outside counsel would have scrutinized because it's in the context of a 13D or a significant 13F (which was Elon's initial filing), in the case of someone as visible as Musk.

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  10. Rich Sternhell

    Interesting episode. Looking forward to hearing from the other side of the horseshoe. My own sense of the difference is that the Common Good argument from the left is we know what is fair, just and good to protect people from the State. From the Right it is we know what we don’t want people to do for the Common Good and we need to protect them from doing harmful things.

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