What Is Religion?

And: magic words at the border.

By and
135

Sarah and David discuss ~vibes~ from a recent emergency docket ruling on razor wires along the Texas border plus Judge Newsom’s latest concurrence on discrimination and religious advertisements.

The Agenda:
–Judge Kyle Duncan ruling and a SCOTUS reversal

-Judge Kevin Newsom and religious advertisements

-Raising highways in Texas

–No Labels sending a letter to the DOJ

-Fifth circuit divided in free speech case

-Honoring former Solicitor General, law professor Charles Fried

-Is it okay to cry at work?

Show Notes:

-Anti-Trump Lawsuits Are ‘Greatly Mistaken’: An Interview With David Boies

–

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Comments (135)
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  1. Sean Smith

    I'm late to the party on this and haven't had a chance to read the other comments, but a few thoughts about crying/losing ones temper at work:

    1. I think it's correct that the same emotions of frustration/extreme exasperation, or the emotions one feels when being wronged or treated unjustly, that lead to crying also lead to losing it, it's just that it more often leads to the former in women and the latter in men, thus both men and women are more accepting of a woman crying. There's no real difference in the underlying emotions, just gendered differences to how they outwardly manifest themselves.

    2. Agree with David that the loss of control in a professional environment is the thing that's professionally deleterious to a person, not really the form it takes.

    3. That said, I think both men AND women are naturally predisposed to be made far more uncomfortable when a man breaks down crying than when he loses his temper.

    4. While it may historically have been more acceptable for a man to holler at and bully subordinates, that's definitely changing. I run a sawmill. Businesses literally don't get more male-centric, male-oriented or male-dominated than sawmills, and I grew up in a very old-school, conservative, redneck environment where you got your ass chewed off (or worse) immediately if you screwed up. Instant feedback, almost always negative. Yet even I have demoted people and removed them from leadership positions for being verbally abusive or bullying subordinates. A phrase I've repeated so often I'm sure my team is sick of hearing is is, "Any asshole idiot can scream at people; it takes emotional intelligence to get the best out of them." And while I agree it's sexist to use special terminology when referring to an intimidating or rage-prone female boss as a "ball-buster" or some such, frankly I don't have much tolerance for that sort of supervisor regardless of gender because I simply believe it's ineffective as a management tool. What you end up with is a crew that will do the minimum required to avoid getting chewed out, but will never be motivated to go the extra mile for you. Nobody who owns/runs a business should want this.

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  2. Stephaniemorain

    Any chance Sarah would be willing to share a copy of the advice on how to respond when a mentee cries at work? Things I would like to file away for future PhD trainee meetings.

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  3. Kottinghome

    Regarding the difference between a riot and an insurrection, I'm no legal scholar, but it seems to me that, wherever that line is:
    A: The erection of a gallows
    B: Calls for the lynching of the sitting Vice President
    C: The presence of armed individuals in a situation where arms would be prohibited
    lies on the insurrection side of that line.

    I would also think that;
    - the knowledge of A through C,
    - the suppression of steps to eliminate C (I e. "turn off the mags, they're not here to hurt me"), and
    - doing nothing about A or B
    qualify as encouraging or formenting A, B and C.

    But, as I said, I'm no legal scholar.

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    1. Sean Smith

      I agree it was an insurrection simply because of what they were trying to do. They weren't merely expressing anger with excessive boisterousness; they were trying to prevent certification of the election result, thus subvert an election and prevent the peaceful transition of power we've prided ourselves on since the dawn of the republic. What's far less clear to me, however, is that Trump materially participated in it. I've seen no evidence that he knew specifically what was going to happen ahead of time or was directing it or pulling the strings in any meaningful way. He was grossly negligent in delaying the restoration of order, and that alone makes him manifestly unfit for reelection. It does not, however, very clearly disqualify him from being on ballots.

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    2. Incognito

      I'm fully anti-Trump but everything I've seen about A) the gallows seems to indicate there is no evidence it was an established part of the loose "plan" to overtake the Congressional proceedings. Best I can tell is no intelligence agency knows who did it, despite it's construction being on video. I understand it remains a mystery to this day.

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      1. Kottinghome

        Does this information change your calculus on the gallows and insurrection?

        https://www.politico.com/news/2022/05/25/trump-expressed-support-hanging-pence-capitol-riot-jan-6-00035117?utm_source=ActiveCampaign&utm_medium=email&utm_content=The+Disqualification+Scenario&utm_campaign=The+Disqualification+Scenario

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        1. Incognito

          It does, thank you. I had missed the committee testimony described earlier by the article you cited. It's extremely damning. Thanks again for correcting me.

          https://youtu.be/q7aaXt3EARg?si=-G4_06J6OyNLF2KD

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      2. Kottinghome

        Who built the gallows really doesn't bear on the questions of; whether there was a conspiracy to erect it (unless you want to make the case that one guy hauled in all the materials and put it together on a whim), whether that gallows gave specificity to chants of "Hang Mike Pence", or whether Trump's lack if response to either / both indicates that he helped to create, and desired, the result.

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        1. Incognito

          The problem with that approach is it assumes the mere presence of them is enough to associate them with the alleged conspiracy (I think there is enough evidence to support that claim) that Trump was trying overturn the electoral count. The problem is we have zero evidence the "gallows" were part of his effort. Including it undermines the primary case against Trump.

          I think two explicit problems exist with attempts to associate the "gallows" with the "insurrection". 1) They were symbolic, not functional. 2) They weren't at the Capital instead they were closer to the rally site in the area between the two (hence J6 committee using a cropped photo of it). That matters as it wasn't a direct threat to anyone at the Capital.

          While I don't see any evidence they should be part of the argument that Trump incited an insurrection it does remain emblematic of how rhetoric is problematic on the far right. Gallows and hanging remain common language on far right forums. We know the environment in such places is perfect to encourage a lone wolf to act on their morbid fantasies. That should make our nation pause and reconsider our current trajectory.

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          1. Kottinghome

            I agree with everything you're saying, but the discussion of the gallows somewhat missed the point I was trying to make, so let me restate: Trump's knowledge of the presence of the gallows, and of the chants of "Hang Mike Pence", when combined with the fact that he did nothing to deter or respond negatively to either, goes to his intention and mental state at the time. They demonstrate that he was perfectly OK with the events as they unfolded.

            It doesn't have to be successful to be an insurrection, and a person who took an oath to defend the Constitution doesn't have to be directly involved in the planning of an insurrection to be "engaged in" it, or give "aid and comfort".

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    3. StevenF

      American Jurisprudence 2d - Volume 45
      (footnotes omitted)
      "Definition and nature of insurrection
      An insurrection has been defined as a rising against civil or political authority, but as something more than a mob or riot. It is a rising against civil or political authority: the open and active opposition of a number of persons to the execution of law in a city or state."

      "An insurrection may amount to a rebellion, at least, an incipient or limited rebellion. However, the term 'insurrection' usually implies less magnitude and success than there is in the case of a rebellion, and does not connote armed opposition or resistance. It does, however, require persons acting in concert, meaning the making of a plan for, or seeking to bring about, some preconceived result. Also, there must be an intent to overthrow a lawfully constituted regime."

      regime legal definition: a system of principles, rules, or regulations for administration (as of property)
      Note: this text isn't legally binding, but it seems to be a good working description of "insurrection."

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      1. Kottinghome

        I think that's a useful source. Thanks for pointing that out.

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      Marc Frischhertz

      Also pre planing the whole thing

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      1. Kottinghome

        Granted, but the pre-planning is harder to prove. If the idea stands without it, getting into that just opens the door for a lot of hand waving and plausible deniability.

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  4. Deleted Comment

    This comment has been deleted

  5. Rblik

    David French say is it about as clearly as I 've heard......we shouldn't lose sleep over politicians who stoke riots/rebellions/violent protests/insurrections being forever barred from office. I find the debate over "what really is an insurrection'' mind numbing. Theres scads of MAGAs in prison right now and Trump incited them with lies and thinks they are heros/hostages. You can't have people like that holding public office. Not a high bar for America to have.

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  6. Adam Rosser

    Sarah and David, have you seen “The Castle”? Fantastic Australian comedy movie about legal disputes over compulsory acquisition of property. This put “the vibe” into every Aus lawyer’s lexicon.

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      David French vertical-nib Author

      I've not seen it! I'm intrigued!

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    2. Graeme.Edgeler

      And every New Zealand lawyer's lexicon, and a bunch of our judges too!

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  7. Avatar photo
    Dave T

    I like David's take on it here. "What is a religion?" is a philosophical question on the order of "What is beauty?" Better to define the term only as it touches the law -- "What is religious liberty?"

    Also, read a great little book several years ago that gave me a very useful perspective on the massive range of concept and scope in religions: 'God is Not One' by Stephen Prothero. I think it's an especially helpful bit of context to have in today's international, cross-cultural world. So many people assume that religions elsewhere are basically the same as the religions in their own backyard ... often, they're not.

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  8. MathewA

    One final though on the Texas border crisis.

    David in your excellent "Divided we Fall" book, you laid out some bleak but certainly possible scenario's. I submit that this immigration crisis could be another possible spur.

    Biden and the Democrats don't seem to be taking this seriously enough, and I could see this really coming to a head

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      David French vertical-nib Author

      My first draft the Texit chapter was about a border confrontation!

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  9. DavidG3276

    Could we consider providing a transcript? I don't have the time to listen to the podcast.

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    1. Davidbenjaminlat

      If Sarah and David decide to go down the transcript route, I've been pretty happy with Rev.com, which I've been using for my Original Jurisdiction transcripts over the past few months.

      Rev uses human transcriptionists, who understand the rhythms of conversation, use common sense, and look up things they don't know. I've been disappointed with the voice-recognition/computerized transcription services—especially for the legal field, which has a lot of specialized terms and proper nouns. With Rev, you can create a custom glossary for the transcriptionists to consult as they transcribe.

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      1. Avatar photocircle-angle-nib
        David French vertical-nib Author

        Great suggestion, David! I've had good success with Rev in other circumstances.

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  10. Avatar photo
    DougAz

    There is one universal arbititor of the Declaration of Independence. Lincoln. Who at Gettysburg, ignored by silence the flawed Constitution and harkened to the asprirstional vision of the words, "All men (people) are (everywhere at all times) created Equal".

    During our Revolutionary War, not one person fought for the US Constitution. Didn't exist. They fought for the aspirations of the Declaration.

    Further, and in agreement after long deep discussions with my Evangelical Pastor brother, a theologian educated at Wheaton, DTS, we agree on the following:

    The Declaration words that follow, "Endowed by "their" Creator" means "their own Creator". Specifically their own unique independent relationship (or not) with their own understanding and resolution of their own faith (or not) to their own Creator".

    My brother agrees with me that the Founders did not mean by far a Christian Creator.

    It's simple. We recognize that Jefferson and the Founders had great and judicious command of words.

    The easily could have said instead of "their Creator":

    Our Creator
    The Creator
    The Trinity
    Christ, the son of God

    They did not.

    America was fought for and founded on that very belief, the unalienable Right of every person everywhere (not just in America) to self determine their own relationship with god, faith, not God, and so on.

    They held, and Lincoln echoed, that "self-evident" means variously, the Invariant, uncontestable, Truth.

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    1. MathewA

      "America was fought for and founded on that very belief, the unalienable Right of every person everywhere (not just in America) to self determine their own relationship with god, faith, not God, and so on"

      Agreed

      But the Creator they referenced was definitely the Christian God. To pretend otherwise is revisionist history

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      1. Brian The 2nd

        There is always that guy who chimes in at this point to say "well actually, a lot of those framers were deists". I guess I'm that guy this time. There were also many adherents to the Masonic "Grand Architect" view which Roman Catholics in particular thought was heresy.

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        DougAz

        There is certainly a good case for that view.

        But Jefferson was inspired also by Locke. The idea of a "watchmakers"god.

        Further, Jefferson said and all agreed that:
        "the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind".

        Why didn't Jefferson say, the God of the Bible? Why was not the eternal redemption offered by Christ to Christians used as a basis for the Declaration?

        Very likely because for a century or 2, European immigrants were escaping Christian persecution by some sects, mostly Catholic, to have the freedom to believe in and practice their own version of Christianity.

        Of which there has not been a universal agreement since at least Martin Luther.

        There are several if not many, variations of faithful acceptance of different forms of a Christian God. Which is why it was clearly not specified in the Declaration. What was specific was "Nature's God". And that is both pagan, broad and open to very many interpretations.

        That's how I see it.

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