Born Free

If you’re hitting the road this weekend, today’s extra-long, extra-patriotic Ruminant should be a perfect ...

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If you’re hitting the road this weekend, today’s extra-long, extra-patriotic Ruminant should be a perfect accompaniment for your travels. Jonah begins by looking at the Dobbs decision, the relationship between the judiciary and the legislature, and why conservatives believe in originalism. Then, after offering some additional thoughts on consequentialism and a generous helping of rank punditry, he turns to the Fourth of July. In a moment where pride in America is particularly low, Jonah believes we should still be bullish about this country, and he has enough philosophical insights on hand to explain why.

Show Notes:

– Last weekend’s Ruminant

– Last Friday’s G-File

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  1. Avatar photo
    Marc Frischhertz

    Jonah, what is the difference between textualism and originalism in practice? I would agree with textualism, but originalism, which morphs into original intent, is a bridge too far. Just like today, in 1776 not everyone had the same intent. It strikes me that it is impossible to find a single original intent for any part of the constitution.

    Your discussion of defining things broadly, which I assume allows for the constitutional protection of gay marriage, seems to me in practice no different than what you claim democrat justices do. Especially if you define some things broadly and other narrowly. In the end, the justice is just reaching their preferred outcome

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  2. Nikitas Hatzimihail

    Great episode, one correction re Seinfeld reference. the paradigmatic “Does it offend you as a Jewish person?” “No, it offends me as a comedian!” dialogue happens between Seinfeld and the Catholic priest of the dentist (who clearly “abandoned” his own Catholic faith and claimed to become a Jew simply to be able to tell Jewish jokes. P.S.: Although Jerry’s own reprisal into dentist jokes doesn’t go well for him, I have since had ample opportunity to explore the truth of his dentist / sadist joke

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  3. Michael Clardy (@mcp627)

    I think the Monopoly analogy allows for a good idea into what I think might need to change to keep some form of substantive due process. Sarah's right that the level of generality of the right being asserted is a big part of the battle.

    Think like this: if you're playing Monopoly with your family and kids, you're using extremely broad definitions of what the Monopoly rules say to keep your 7 year old niece from flipping the table when she lands in jail. Meanwhile, when you're in competitive Monopoly for money (real degenerate gambling lol), the strict letter of the rules controls because you want no holds barred combat.

    Constitutional rights really should be the former instead of the latter. Your rights don't compete with someone else's, so we should be, on principle, broadening the scope of the right alleged to protect more rights. Then, at that broad scope, we should go through traditional scrutiny analysis based on whether that broad right fits within the broad rights covered by the Constitution.

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  4. Avatar photo
    Estoppel Enjoyer

    I have to say, I'm a little disappointed in Jonah's legal commentary. It seems uncharacteristically one-sided. In other areas where he has an opinion, Jonah seems more than capable of learning what the other perspective thinks, and then explaining that side of the argument in an honest, and good-faith way, before explaining what he thinks is wrong with it.

    Instead, when it comes to this legal punditry, Jonah seems more interested in noting that he's never heard a non-originalist theory of constitutional interpretation that wasn't just liberals legislating liberal things from the bench, including Roe/Casey (mini-rant: Jonah repeatedly has misstated Roe's holding- it did not guarantee a right to abortion up until birth. It guaranteed it cannot be banned before *viability*, a much different line). But it's quite clear from the types of arguments being made that Jonah simply has not done the reading on what liberal constitutional scholars, or even the non-cable-news legal pundits on the left, think about interpretation. There are many thoughtful people (including 3 very sharp Supreme Court Justices) who wrote a whole dissent about it. He's certainly not heard the critiques about how anti-democratic the current Court's decisions actually have been (at least in EPA, 2nd Amendment, religion, but obviously not in Dobbs), at least not from any liberal that knows what they're talking about.

    And you even can dress up the anti-democratic critique in originalist garb if you'd like. The EPA decision relied on the "major questions doctrine", a judge-made theory of law that has no basis in the text of any statute or the constitution. It is used to ignore the plain meaning of the text: instead of looking to just the words in the statute to decide what the agency can/can't do, SCOTUS will inquire into whether they think the agency is acting in an unusual way, or if they regulation is "extraordinary", and the more important or impactful the agency's action is, the more explicit the grant of deference must be. It creates a new method of statutory interpretation and then selectivley applies it based on whether the Court thinks the regulation presents an unexpectedly extraordinary measure (not based on text or precedent, but vibes). It's a requirement that was unknown (because it was just made up) to the drafters of most of our statutes that agencies interpret, meaning that it's not really based on what the original public meaning was. It changes the normal rule of "you read the plain meaning of the statute to see what Congress meant to do." Instead, the Court imposed its own rules to determine whether Congress delegated something to an agency, rather than relying on the text alone.

    But because the "major questions doctrine" (a doctrine which law students spend ten minutes on in Admin and had never been named in a SCOTUS opinion until last week) leads to less regulation. Congress can never guess exactly how extraordinary the Court will find each delegation and then match the level to it, and agencies will never be able to guess what they can and can't do: this is not a Court that cares about precedent, and the elements laid out in EPA are more incoherent and free-floating than anything Steve Breyer ever concocted. You cannot have effective regulations without giving Congress the power to empower agencies to be at least a little flexible and dynamic over time, within the bounds of the text.

    Apologies for the length, but the same point really applies to a lot of what the Court did. It's supplements its own wisdom, on policy, on American history, on the practical consequences of its rulings, for everyone else's.

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    1. Avatar photo
      Mary

      Jonah really needs to leave this topic to David and Sarah. So much of what he said is just factually wrong that it was very un-Jonah-like enough to be fingernails on a blackboard. I don’t get why he decided to go down this path.

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  5. Avatar photo
    Honest Ape

    Hey, Jonah... I truly appreciated the extra effort you put into this edition of The Remnant and glad your producer seems to have kept your entire stream of consciousness intact. The last 10-15 minutes of it - centered around Silent Cal's perspective on the Declaration of Independence - were exceptionally exceptional. It reminded me of the grand fireworks finale at the end of A Capitol Fourth. Which reminds me, 3-1/2 hours until showtime.

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    The Bell Tower

    I apologize in advance for the amount of times I intend to plagiarize Lipstick on the Pig of Tyranny.

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  7. Dustin C

    Would you please do something about the audio quality of your podcast? Your vocal level fades in and out badly and is way out of proportion with intro/outro music, curse bleeps etc.

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  8. Deanjens

    I'm among those who commented about your argument "against" consequentialism, and I still think I could place you within rules consequentialism, but you certainly make good points that aren't what people first think when they think "consequentialism".

    Jonathan Haidt gives a moral reasoning question in which he asks about a case of incest in which he thinks he has stripped all the negative consequences of it and asks people about it, and the people he considers "liberals" (with only three of the five moral "senses") have trouble with it and usually go along with "well, I guess it's okay then, because I can't argue within my framework why it's wrong." My response is that your moral intuition may be telling you that it's not actually realistic to think you can successfully strip all those negative consequences from it, at least not in a way that can be reasonably known ahead of time and -- as you say 45 minutes into this week's ruminant -- where the example doesn't exist in a vacuum. That's not to say that "moral intuition" is always right or that we should never try to reason past it, but a lot of our cognitive biases as individuals and (even more so) as groups tend toward favoring specious ideas that are more readily verbalized over ideas that are less readily verbalized. Being too quick to say "this rule doesn't apply because of this particular special pleading" is to leave oneself especially susceptible to those errors.

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    Richard Grebenc

    This post may suffer from recency bias, but I have never heard Jonah in finer form than with this Ruminant. I particularly appreciated his passion regarding pride for our country, but it was all top notch.

    Regarding the Dobbs decision, I think Antonin Scalia deserves an asterisk as an honorary vote with the majority. I'm glad I listened to this interview, suggested by YouTube, especially his discussion of strict constructionism and stare decisis: https://youtu.be/DaoLMW5AF4Y

    Regarding the January 6th Committee, I found this Megyn Kelly Show monologue (about 11 minutes at the beginning -- worth it even if you just watch that portion) and subsequent interviews (definitely check them out if you have the time) to provide some much needed balance and legal expertise from a host and guests who are no fans of the former president, to say the least (the Dispatch in general and Jonah in particular even get a mention!): https://youtu.be/LMmnRhNrygo

    I am no fan of Mr. Trump, either. Particularly in light of his words and actions on 11//3/2020 and since, he has shown to be unfit for the office, regardless of any additional information or testimony from those around him in those fateful days. The problem is, though, that in their eagerness to believe anything negative about the man (and it it tempting to do so, I will concede), moderation and objectivity of those strenuously opposing the previous office holder go out the window. This only serves to bolster the case that he is being treated unfairly. The plain facts we all saw are devastating enough -- there is no need to diminish them with undue credulity and bias.

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    Ben Connelly

    Until 2015, I’d never felt ashamed of my country. In the last seven years, there have been many times I’ve felt ashamed. But on Independence Day, I will unreservedly say, “I am extremely proud to be an American.” Happy Fourth of July! Jonah Goldberg is a great American.

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