Advisory Opinions - Beyond Originalism?

Episode Date: April 2, 2020

David and Sarah discuss the political ramifications of the coronavirus outbreak, Adrian Vermeule's essay on originalism, and what conservatives get wrong about masculinity. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Hey Sasquatch, over here! So when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. We're going to have a relatively coronavirus-light podcast today.

We're going to start with a little punditry surrounding coronavirus, answering some political questions. But we're going to spend the most of our time on issues raised by an essay published in The Atlantic written by Adrian Vermeule that was essentially calling to do is transform conservative jurisprudence from an originalist mindset to what he calls common good constitutionalism. And this has echoes back to the months-long debate last summer over, quote-unquote, David Frenchism. I still can't believe that was a thing, but was really over everything from civility to classical liberalism itself. And so we're going to talk about that. And what is and why? Why originalism? What what is originalism? Why is it worth defending? And then we're going to roll into, believe it or not, it's going to be related. You're going to see that it's related. We're going to actually talk about what conservatives are starting to increasingly get wrong about masculinity. I just feel like that's so great because you've been my feminist ally here for the last several months.

And now I get to return the favor and be your masculine ally. Awesome. I love it. I love it. Well, let's start with. So if you listen to the Dispatch podcast, which we hope you do, we talked a little bit about some of the political ramifications of the coronavirus crisis, including this draft Cuomo sort of idea that Sarah, if I remember right, you were basically saying that's all just nonsense like this. There's no real mechanism for that to happen. Yeah. Yeah. It's there might be political reasons that it's nonsense. Peter Hamby, who I find to be one of the smarter voices out there in media world, he just keeps re-upping this tweet every week that says people who think, who are part of the draft Cuomo effort have never met Andrew Cuomo before last week. But set the politics aside, because I think great moments can overcome politics, you know, a political past. But there's logistical problems, which is that the DNC rules are set every four years.

the DNC rules are set every four years. And in 2016, not surprisingly, they were set to have these pledge delegates where the superdelegates can't vote on the first ballot. We actually talked about this before when we were talking about a contested convention. So now here's the rub, which is kind of interesting. And I want to get to Wisconsin in a second. But basically, every primary at this point has shifted except Wisconsin, which is to be held on April 7th, unless a judge who is supposed to decide any minute now says otherwise. They've all been moved to June, for the most part. So if Biden reaches the number of pledged delegates needed, then it's done. There is no draft Cuomo movement. There is no contested convention.

The only logistical way for this to happen is, A, Biden steps aside somehow and frees all of his delegates. I'm not sure of the mechanism for that in the rules, but I'm guessing there's some mechanism by which a candidate can decline the nomination. Or, two, somehow those delegates don't become pledged before the convention. That would mean that these primaries don't happen. I don't think that's likely. But it does take me to my next potpourri thing, which is all of the lawsuits pending in Wisconsin. And David, this is unusual because right now we have the democratic state party and the democratic

national committee versus the democratic governor versus the republicans and the issue is well the republicans want to hold the election on the 7th. They control the legislature, for what that's worth. The governor, who's a Democrat, wants to hold the election on the 7th, but wants to have all non-in-person voting and basically get rid of the witness requirement for absentee ballots. Right now, you have to have someone sign your ballot. Right. for absentee ballots right now there's you have to have someone sign your ballot right the dnc and the state democratic party want to delay the election and so uh there are many many different lawsuits pending at this point all with different perspectives and different points uh this is moving pretty quickly so there's rulings coming you know on the regular. So I

don't want this pod to be super out of date. But the last one I saw was the judge saying that he does not believe he has the authority to delay the election, which would be odd because by any, like he almost certainly does. Well, right, right. Now, you know, this raises an interesting question aside from sort of the tangled web of the competing interest in Wisconsin. And it raises a question that I I don't know what you think about this. And we did not talk about this in prep for the podcast. So I'm going to spring a question. I love these moments. Yes. Yes. Vote by mail. What do you think about it? I wish that we had a better mechanism for non-in-person voting.

But I don't think that we do. So in 2012, there was this little known, I'm going to call it a pre-recount, because it was all the mechanisms of a recount, but it happened before the 2012 election. Because absentee ballots in Palm Beach County were printed with an error on them. So they all had to be counted by hand, separately, ahead of time. And I was sitting in this warehouse for two weeks, so I have many quite visceral memories of this. And it goes back to early voting. It goes back to absentee voting.

There's a problem with it. And it is acknowledged by all sides that it is the largest area ripe for fraud. People will take absentee ballots from mailboxes, et cetera, pay people for their absentee ballots, things like that. There's been some documented evidence of that. That being said, I get that showing up to a polling place is a burden of some kind, whether it's a super high burden or a super low burden kind of depends on who you are in your situation and whether voting should come with some burden is up for debate also. What's your take? You know, so I've long I've long had this thought that two things at once. One, I long for a more informed voting public. Number two, I have always been deeply uncomfortable

that the Republican Party and until recently, I'd always identified with the Republican Party, and until recently, I'd always identified with the Republican Party, seemed to be dead set on making sure that it was harder to vote. Yeah, which I'm not for. The Democrats seemed to be dead set on making sure it was easier to vote. So, but I had this feeling, but the Republicans making sure it was hard to vote had nothing to do at all in any way, shape or form with, you know, a more informed populace, et cetera, et cetera, et cetera. It seemed to just have it seemed to be that the Democrats had a lot of confidence for some reason, for not for some reason, for many reasons, that the more people vote, the better they'll do. And Republicans seem to have a lot of confidence that the fewer people vote, the better they'll do. And Republicans seem to have a lot of confidence

that the fewer people vote, the better they do. And now in a country that is ultimately, yes, I know readers that you're going, I mean, listeners are going to say it's a republic, it's a republic, it's a republic. Yes, it's a democracy and a republic. So it's a democracy that is a republic. So in a democracy, there is a little bit of discomfort in my mind with the idea that I'm going to align myself with the group of people that consistently seems to want fewer people participating. And so I've long had a problem with that. Now, I recognize that vote fraud takes place. I recognize that voter suppression takes place. I tend to think that the the allegation that the extent of voter fraud, voter fraud exists,

but the extent of it is wildly overblown, wildly overblown. That 99 point whatever percent of American elections, the margin of victory in those elections is well outside the margin of fraud, well outside. not, I tend to not be as alarmed by voter fraud and the absence of evidence of anything more than isolated instances, if that makes sense. So my general thought is I'm very open to measures that increase voter participation while at the same time trying to dramatically ramp up our civic education. Does that make sense? That makes a lot of sense to me. I'm with you that the political arguments for why you want more people or fewer people voting could not fall on deafer ears for me from both sides.

And that this really should be sort of a behind the veil, what is best for a Republican democracy, if you will, in terms of voter participation. And I think that there is, per usual, some balance to be struck on there being a burden to voting, meaning, you know, unlike the census, we don't chase you down. And unlike Australia, we don't fine you, for instance, for not voting. Because not voting in and of itself is a form of speech, I think, and protest. Yes, 100% agree with that. So some burden.

But at the same time, the burden should not be losing your job, for instance, because you can't get to a polling place because we only open it from 1.30 to 1.45 during the workday. So I'm not saying that happens, obviously, but I'm using it as just another extreme. So there's some in between. I'm not sure that Wisconsin is the laboratory of democracy we want, but it may be the laboratory we deserve. want, but it may be the laboratory we deserve. Well, I think that the line between deserve and want has been coming down in a negative way for us for a while. Hey, but speaking of that, by the way, did you see that a bunch of the New York groups are getting together and saying that they don't want lawyers to have to take the bar exam there. Yes, indeed. Speaking of an uninformed group of baby lawyers. So I was having a fun conversation last night at a very socially distant, appropriate gathering of some friends from church. We sat, never got within,

I would say even 10 feet of each other. And this, by the way, just as an aside, it made me realize there is a dramatically different burden that exists for people who are sheltering in place if you're living in an apartment building in Manhattan versus living in suburban America. I mean, it's just night and day. Our poor producer, Caleb, is sitting in a 400 square foot apartment and he tells me he paces around in circles. I think he's exaggerating, but maybe he watched Tiger King and was like, that looks like good exercise to me. And he just like paces his cage. King and was like, that looks like good exercise to me. And he just like paces his cage. Yeah, it's it's amazing the difference. You know, I'm able to get out and run. That's completely consistent with the guidelines in our city. And I probably haven't even been within 20

feet of another person. So but anyway, we were talking about what are some potential long-term cultural changes, if cultural, legal, political changes, if this really persists as long as it could with sort of ebbs and flows. You know, some of the measures that we talked about a couple of podcasts ago, where you have a lockdown right now, and then you ease up through contact tracing, etc. But then if there's a new flare, you might have to relock down, et cetera, et cetera. This thing could go on to varying with varying degrees of severity for a while. And it's going to have a cultural effect. And waiting for the bar exam tie in.

Yes. Will it survive over the long term? The bar exam. Five over the long term, the bar exam. So it is the it's one of those things that in a time of crisis, sometimes it exposes the uselessness of administrative hurdles. Right. And I am of the opinion that the bar exam is useless. And I'm open listeners, David at the dispatch dot com, Sarah at the dispatch dot com. Tell me why I'm open. Listeners, David at TheDispatch.com, Sarah at TheDispatch.com, tell me why I'm wrong. But how else would I know oil and gas law, David? Do you still, though? Do you still? I'm pretty sure it has something to do with I drink your milkshake. I don't even know that reference.

Oh, my gosh. There will be blood, David. No, I never saw that movie. Oh my gosh. There will be blood, David. No, I never saw that movie. Oh man. I know. I know. So I've taken two bars. Shame him. I've taken two bars. The Tennessee bar, right when I got out of law school, which was, Sarah, I procrastinated. I procrastinated. It was one of those things where I got that plum law firm job where they give you a stipend to study for the bar and not work. Oh, yeah. Dangerous. Yeah. ski gear. I did not use the money to take a bar review course. I got the Barbary books from a friend who took the bar exam the year before. And then four days before the bar exam, I had this moment of, oh crap, I have not studied for the bar. Oh, David, I'm going to beat you so badly in this game. Please. So I took a job before law school graduation at the National Republican Senatorial Committee. And so I, you know, was working full time,

definitely was not going to take a bar review class, got books off eBay that were five years old, which nice. Yeah. Well, we'll get to the problem with doing that in a second. Uh, flew down to Texas, you know, whatever it was on like a, uh, like Sunday and the bar exam started on a Wednesday or something. Uh, on the day that I walk in, someone was talking about some like corporate code. And I was like, what's that? And they were like, what are you talking about? And I realized that they had passed a whole new corporate act in Texas in the five years since my books were published. So I asked this very nice person just to tell me the name of the new corporate code.

And I would just assume it was exactly the same as the old one, which obviously it wasn't going to be, but I would just use the correct name. And maybe that would get me through. I was starting my clerkship then two days later. And we had in Texas, you get your score. So we had a bet of who could get the lowest score on the bar exam. And I told my judge my whole plan, which was like, look, if I don't pass, that's what, you know, I'm clerking so I can take it again next year and actually take a course and, you know, try. And she informed me that she had never had a clerk not pass the bar exam and quote, she wasn't sure what she'd do about that. I was like, it's too late. I already took it. Yeah. Oh, yeah. Yeah. We, you know, I got the same thing. No one in the firm has ever failed the bar

and I'm sitting there cramp cramming in those last few days going, why do I always procrastinate? And then, so the, the, it has a multi-state proportion and at the time the Tennessee bar had 12 essays. Uh, the multi-state was multiple choice. The Tennessee Bar had, I believe, 10 or 12 essays, but you only had to pass seven of them. And I remember the very first question on the essay dealt with the Uniform Tennessee Bulk Sales Act. And I will confess, and as I did at the time, I'd never even heard of it. And so my entire answer was, what is the Uniform Tennessee Bulk Sales Act? And not in a rhetorical sense, more like, no, really. Yes. No, really. That was the whole answer. But that's a long way to say this thing.

Again, please, listeners, tell me why I'm wrong. This thing is it's kind of like it's a useless ride, uselessly expensive rite of passage into the practice of law. And I would be more than happy to see it go away. For instance, what they've done for medical school students is they are graduating them early this semester at a lot of medical schools. I'm wildly in favor of that for any number of reasons. But one of those reasons is that medical schools in this country actually have very few spots available so that the hurdle to get into medical school is where we do the wheat versus chaff separation. Not true in law schools. We basically let everyone go to law school. The market determines how many people go to law school. And then this bar exam is sort of the only, and it's not a good one.

I will acknowledge to you fully. I'm not going to defend the bar exam. I think state bars are basically in violation of RICO statutes. You know, that's sort of where we do it. And if you can't pass the bar exam, you can take it again. There's some, you know, mechanisms, but maybe you shouldn't be a lawyer. Yeah. Well, I feel like the bar exam is a lower bar than the market. But we don't need to spend a ton of time on this because we have these whole other big conversations. But before we get to the big conversation,

let me go all the way back to the draft Cuomo thing that started our pre-originalism discussion. So I'm sitting here looking at, and this relates to something we said in the Dispatch podcast, a point you made in the Dispatch podcast. Why are we not talking about draft Gavin Newsom as opposed to draft Andrew Cuomo? Because I'm looking right now with the new number of cases cases that the total number in New York is 92,381 with 2,373 people who've lost their lives so far. Horrible. California, more people, multiple cities,

coastal cities that are, they don't have the same population density as New York City, obviously, but have pretty high population density, tons of links to China, tons of links to the rest of the world, and total California cases 10,018, total deaths 215, total new cases announced today 211 versus New York 8,480. And with Newsom having taken some really decisive action before a lot of other governors, and yet there's no draft Gavin Newsom. I mean, isn't this just further evidence kind of, and I heard a friend of mine who lives in California, who said during the wildfires a few months ago, look, one of the things that's hard to endure about this is that if these wildfires were happening outside of New York, it would be all anyone would be talking about in the whole country. They're happening outside of San Francisco. And so it's as if it's not even happening.

Is this further evidence of that? Yeah, of course it is. I would tell your poor friend. I totally agree on the wildfire thing, for instance, but at least they live on a coast. Think about, you know, tornadoes and everything else that hits the middle of the country. And it's like maybe, maybe the fifth or sixth story on the nightly news, but probably not. Right. the nightly news, but probably not. Right. So I've looked at some numbers on the sort of coastal concentration of media that's happened in consolidation over the last 10 years as local newspapers start crumbling, frankly, and local news starts falling apart. And yeah, I mean, nothing about this will surprise you. It's moving entirely to the coast and to large metropolitan areas. And New York has the lion's share and L.A. is taking up a good bit of the rest. Now, the types of media that are in New York and L.A. are very different as well, as you can guess. But there's two things going on as far as i'm concerned one the concentration of media uh in new york and dc for that matter and two that perversely you're handling a bigger

crisis in new york so you look more like you're the crisis manager in californ, it's less of a crisis. Therefore you're not as crisis managing. Right. It's a perverse incentive, but there's some of that too. Yeah. Yeah. That, I mean, that's fascinating. It's sort of like the, the dog that doesn't bark, um, gets less attention and, but it is, it is really striking. And when all this is said and done, and I, I really hope and pray that California continues on this positive path, that we're going to, you know, this after action report, this, I think there should be a sort of a 9-11 style commission that just really ruthlessly looks at how well we handled every aspect of this and what we can do to change, because

this is not going to be the last pandemic. You and Adam Schiff. Because this is not going to be the last pandemic that you and Adam Schiff. Yeah. I don't think Adam Schiff should run it, but we we need to have this. It's going to be very interesting, very, very interesting to me to see the after action as to all of the reasons why the New York and now New Jersey experience has been so substantially different. And we have reasons that, you know, we posit involving population density, public action, international travel, etc. But we really will need to break this down in a very comprehensive way. Ready to talk originalism? It's originalism time. All right. So wait, can we just start with a really basic question that I have about this? Yes. Are we sure this wasn't satire? Yes, sadly.

No, but like, there are lines in here that I have to just like they're too outrageous. Right. OK, so. Let's let's sort of set the stage. Beginning. Oh, gosh. I mean, Patrick Dineen's book, Patrick Dineen. Oh, gosh. The time has already scared. I think it's 2018. It came out with a book where Patrick Deneen, Notre Dame professor, in which he essentially said that liberalism,

and when we say liberalism, we're not talking conservative liberal like Republican Democrat. We're talking like classical liberalism, a rule of law, constitutional centered, constitutional form of government, that liberalism itself is in many ways responsible for some of the most negative aspects of what Deneen would call some of the most negative aspects of American society, increasing atomization, the decline of the family, economic inequality, you name it, that rather than looking at this policy or that policy as being deficient and we just tweak policies, that the system itself, the American system itself is fundamentally flawed. And this kind of made waves because it was coming from the right. fundamentally flawed. And this kind of made waves because it was coming from the right. And then you had the Saurabh Amari broadside against me that triggered this giant pundit food fight for about four months that was really centered around two separate issues. One of them

was around just basically civility versus cruelty or kindness versus malice in public discourse was were our political differences between left and right so great that it was not just permissible, but in sometimes mandatory to abandon kindness, to abandon civility in your political discourse that you had to just, you know, dunk on the lips or own the libs as a matter of course. And people said that civility was an example of peacetime conservatism. So that was sort of the tactical question inherent in the Omari attack. But the big question was he kind of doubled down on this idea that liberalism itself is problematic. And he flirted with a concept called integralism and integralism.

It's complicated. And and some listeners will say, oh, your definition is too simplistic. But it it would integrate in his mind. It would integrate Catholic. It would integrate Catholic theology and principles of American governance. Catholic theology and principles of American governance, and it would integrate the church and the state in a far more comprehensive way than is now. And so essentially what it became was a battle between liberalism and a form of Christian authoritarianism. And one of the principal advocates of this point of view is Adrian Vermeule, who's a Harvard law professor. He's a recent Catholic convert. And he's so far in that camp that he actually has publicly expressed appreciation for the Franco regime in Spain.

And he was given space in the Atlantic to sort of launch a broadside against originalism called Beyond Originalism. And so that's setting the stage for it. So that's why it wasn't, Sarah, a troll. You say that, you say that, but I'm going to read this line. Okay, go for it. I mean, I'm sorry, like, I hear you. Maybe it's a long troll. I don't know. But I'm sorry like I hear you maybe it's a long troll I don't know but I'm having a hard time and so Adrian Vermeule did start teaching at HLS while I was there uh he has converted to Catholicism since I left as best I can tell so maybe this is all just new but this is a real line in this piece that you're telling me is not said sarcastically. Okay.

Just authority and rulers can be exercised for the good of the subjects, if necessary, even against the subject's own perception of what is best for them. Perceptions that may change over time anyway, as the law teaches, habituates, and reforms them. Subjects will come to thank the ruler whose legal structures, strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits and beliefs that better track and promote communal well-being. I mean, well, first first of all ruler and subject stuff there gets like weird um the bureaucracy will be seen not as an enemy but as the strong hand of legitimate rule

and then this part which is the best he's talking about what will have to go under his version of constitutional common good. So too should go the libertarian assumptions central to free speech law and free speech ideology, that government is forbidden to judge the quality and moral worth of public speech, that quote, one man's vulgarity is another's lyric, and so on, fall under the axe. Libertarian conceptions of property rights and economic rights will also have to go insofar

as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources. I think I read that in a different book one time. and distribution of resources. I think I read that in a different book one time. So, okay. So he's not kidding about this in any way, shape, or form. I mean, I, when I, so are you sure I'm a hundred percent positive? I'm a hundred percent positive. And, and I'm going to, and, and look, this is a fringe. This is fringe, fringe, fringe stuff like this is not a huge groundswell and conservative. It's in the Atlantic. It's in the Atlantic, but it's still fringe, fringe, fringe stuff. But it's important to address.

We didn't find this on Daily Stormer, David. I know. I know. I know. But hang with me here. OK. OK. At first, I was I was skeptical that a lot of this debate, as we saw over the next over the several months after Soreb launched his against David Frenchism broadside. sort of populism, a kind of populism, sort of just Trumpism with a Christian veneer all around it, which was more comfortable with populism, more comfortable with state power, less comfortable with, you know, a class originalist version of the Bill of Rights. And how much are we dealing with at the fringes, outright Christian authoritarianism? And it became pretty clear to me in the debate that I had with Sorab in September at Catholic University, that we're talking about is that there is an actual movement on one end of the popular spectrum for actual Christian authoritarianism. And the tell is a name,

Constantine. Constantine, the Roman emperor who officially Christianized Rome. This name kept coming up in the debate. It kept coming up in the conversation. It does not come up in my conversations very often, I will tell you. No, it's not a name that comes up with in many people's conversation. And what you began to see is and here's here's what's dangerous beyond this really over the top essay in The Atlantic. to embrace, to shed constitutional structures if those constitutional structures do not lead to policy outcomes that the right-wing populist authoritarian likes. And that's the heart of the attack on originalism here. It's that originalism doesn't always yield case law outcomes that advance what he calls the common good. And that's the heart of it. You and I have talked about this before, where it is my chief frustration with conservative philosophy, maybe as a whole, which is that it purports to be about process, but then I see people complaining about outcomes.

You should never be even interested in outcomes according to conservative legal philosophy. It's, you know, to my behind the veil point, it's sort of why a Republican democracy exists in the first place. Well, and there- But again, and my main contribution to this conversation is simply to read things

that make me think that this isn't real. This is the last line of the piece. Originalism has done useful work and can now give way to a new confidence in authoritative rule for the common good. Well, that reminds me of Saurabh's line in our debate. I'm in favor of banning things. I mean, I like think Stalin might have said that. Well, and the thing is, there's no real limiting principle here than other than their own conception of the morality that would govern the ruler. Which is so weird, because why do they think they would be the ruler?

It's so weird because why do they think they would be the ruler? Why would that ever be the assumption that you, either Adrian Vermeule or his five buddies, will be the authoritative rule for the common good in this weird subject parent, like very monarchy driven. It's so creepy to read. And that's why I think it's fake because a smart person can't believe that out of 350 million people they will be chosen ruler and they will always be the ruler and people who agree with them will always be the ruler no no smart person thinks that well i would say no wise person thinks that i don't even think dumb people think that. Look, the number of true,

of people who really agree with Adrian Vermeule can most likely fit in a phone booth, a moderately sized phone booth. I'd say when I was debating Saurabh at Catholic University, maybe 80% of all the true integralists in the entire United States of America were in that room supporting Saurabh. United States of America were in that room supporting Saurabh. So no, no, Constantine is not walking in that door. These guys are imagining some sort of pre-Reformation majesty of Catholic rule. But instead of Constantine, they'll get Don Jr. I mean, like that's the reality. They can't pack a stadium. They can barely pack a lecture hall in a university. You know who does pack a stadium is Donald Trump. You know who does pack the biggest convention centers in the U.S. are people like Turning Point USA or Don Jr. or CPAC. And so what you've got here is sort of a outer edge Christian veneer.

By the way, David, do you know who else packs a stadium? Bernie Sanders, Barack Obama. Like, again, also, I'm pretty sure under this version of Constantine or 14th century reformation, whatever we're talking about, like in every single example, I get burned as a witch. Like I'm sure of it. I'm a hundred percent confident in any version of this. I, there's, there's smoke and a lot of fire and it's, and I am tied up around a stake. Yeah. You know, and the other thing, can I just give an aside here for a moment? And the other thing, can I just give an aside here for a moment? I hate how much this is being tied in the public discourse to Catholicism,

because I know and work with and have worked alongside countless Catholic lawyers and Catholic scholars and Catholic professors who zealously defend the American founding, who zealously defend classical liberalism, who zealously defend the conception of the American constitutional order as envisioned by Madison, etc. And, you know, this idea that this is setting up and I was asked this at Catholic University, do you think this is setting up a conflict between Catholics and Protestants? And I said, no, and I still believe no, because I'm I'm surrounded by incredibly thoughtful Catholics who read this from Adrian Vermeule and say, what the heck is going on? And because they also know history and history has demonstrated that when America gets illiberal, Catholicism has suffered. The Blaine amendments,

for example, that I believe we've talked about in a previous podcast. But this goes to my point, David. Of course, what you're saying it it's almost i would make fun of you for saying such obviously obvious obviousness this is swiftian it is a joke and it should be treated like a joke and it should be laughed at and we should all enjoy the well-executed joke that was played on us well you know i really wish you were right i really really do i i don't think there's anything you can do after reading this to convince me that what i'm reading is written by an american who means it for exactly what you're saying.

Because any, you don't have to go back to Constantine or to the witch burning that I would very much be in the witch side to find times where you, the person who you think should be ruling, are then discriminated against for the very reasons that you think you should be ruling. Which is why the American experiment is both unique and cherished and why we, you know, we do inculcate these values in our next generation. I thought Jonah had a very good metaphor of in his Wednesday, what are we calling it? The Wednesday epistle or something?

in his Wednesday, what are we calling it? The Wednesday epistle or something. Yeah, hump day epistle. Hump day epistle. Highly recommend. But he uses the metaphor of nature that the American experiment is so unique because we've cleared this field for farmland, so to speak, the farmland being the government.

But the second you turn your back on that or don't keep it up, don't pass it on to the next generation, nature will come back through vines and trees and everything else. And it will encroach on that farmland and make it unusable again. This essay in that context, which Adrian Vermeule is very well aware of, again, makes it a very funny and well-executed piece of satire. Oh, gosh. Well, I so wish you were right. I really do.

But I do think that what this – this does present a useful moment to remind people why we have certain structures. why we have certain structures. And I really dislike this. I really dislike this contest, this artificial contest that the sort of more authoritarian Christian right has set up versus common good versus the Constitution, because liberty is in the common good. It is liberty has an independent value. And what they're arguing is that liberty is only valuable if people exercise their liberty responsibly as they define responsibly. But any proper understanding of the power of liberty in a society understands that's completely wrong. Second, originalism really goes to where does the proper authority, where does the proper authority to define the law and policy of a people lie? Is it with the people or was it with judges? And it also rests on a really pretty simple concept that words mean things. And then this idea that the real problem is liberalism neglects the pre-liberal history

of the West, of Western civilization. This kind of view cannot exist in a pluralist society. When you try to impose this kind of Christian authoritarianism on any kind of diversity of viewpoint, history teaches us that the result is blood, lots of blood. He has an answer to that, which is, and this is, again, I think more to my satire point, yes. And therefore, we should not have a diversity of viewpoint, which is this is again i think more to my satire point yes and therefore we should not have a diversity of viewpoint which is why we're going to get rid of free speech we're going to get rid of property rights and the bureaucracy i mean by the way telling an american public that the bureaucracy is what's going to rule here is i think my number one piece of evidence uh for the prosecution um uh but yeah if you get rid of free speech property

rights economic rights and have a robust authoritarian democracy which again this isn't orwellian he's not orwellian he's literally just writing what he thinks which i appreciate again to the satire point uh you know the other reason that I know it's satire is because my cat Zoo, you have been hearing on and off because there's no way that Caleb, our wonderful producer, can erase every meow that has been in here.

I mean, Zoo hates this essay. As Zoo should. Zoo is a proper originalist cat. But I do think it raises an issue of, OK, let's, I will suspend reality for a moment and assume you are correct, that it is not satire. You haven't convinced me, but I'll, let's assume. What is driving it? Because again, I think it is so ahistorical and bizarre to have, you know, whatever. And I think what is driving it ties into the next part of our conversation, which is this new conception of conservative masculinity.

I think that's part of it. And some of you might be scratching your heads and going, what? What are you talking about? What does this have? This is just pointy head intellectual. You know, this is a Harvard law professor, which nobody like if you're if you're sort of thinking about the archetype of American masculinity, you're typically not thinking Harvard law professor. What does this have to do with anything? Well, it goes back to something I said at the very start of this conversation about the difference between wartime and peacetime conservatism. this conversation about the difference between wartime and peacetime conservatism, that we are in an existential fight against the forces of darkness. We are losing. And therefore, what is required and one of the reasons we are losing is we're insufficiently tough. We are insufficiently strong. And you see this, you see this sort of notion that says, and it's essentially like you're not man enough to fight the left. I mean, this is the kind of attacks

that I've gotten for months. You're not man enough. You're a peacetime conservative. You're weak. If you see this constantly in conservative discourse now, if you pay attention to the mainstream media and believe that coronavirus is a communicable disease that can be fatal and therefore you want to comply with state rule, state rulings about temporary rulings about spacing and not going to large gatherings, then you're a pansy, to quote Rodney Howard Brown, the pastor who was arrested in Florida. Eric Metaxas and Pastor Richard Jeffries from Dallas, Texas, had a conversation about Tim Keller, who's a thoughtful pastor from Manhattan, a Presbyterian pastor from Manhattan, who advocates sort of more political independence on the part of Christians.

Don't be tied to one particular party. That's evidence of, you guessed it, cowardice. Time and time again, if you're not on the right wing populism train, it is because you're not man enough. You're not tough enough. You're not tough enough. You're not strong enough. But what's the evidence, Sarah, of the manliness, of the toughness, of the strength that comes into play? Well, it usually involves like tweeting like an asshole. Oh my, David, is this a first? Is this an AO first where you've cursed before I have?

my, David, is this a first? Is this an AO first where you've cursed before I have? I think it is. I think it is. No, really. Tweeting like an asshole. No, it is. I want a bumper sticker that says that. You know, I mean, it's tweeting like an asshole. It's not physical bravery. It's not. And because you're sitting there often excusing lies and rationalizing incompetence, it's not moral courage. It's just I'm posturing. It's a peacocking.

I think, love the peacocking. I think that you have done a very good job of explaining it in terms of what it is. Or at least this one strain, what the strain is that you are describing is. Why has it come up now, though? And what is it taking the place of? What was conservative masculinity in 1998, just to pick a random day? Yeah, that's a great question. I mean, I think so. 1998, I'm 29 years old, so I can remember 1998 pretty well. And you laugh, you scoff because it reminds you of my age. There wasn't a conversation about conservative masculinity because there wasn was an insecurity about it. So why is that insecurity popping up now? Now, I would say this.

I would say that there is a way in which the conservative movement has been completely distorted by its flawed response to political correctness. Okay. by its flawed response to political correctness. Okay. So there's been an increasing amount of conversation in the last 20 years about, is masculinity as a concept a problem? Sure, toxic masculinity. Toxic masculinity.

What was it? The American Psychological Association put out guidelines saying that traditional concepts of masculinity are harmful to boys. And so you've had this movement on the left that has gone too far and has said that, for example, aggression, which can be a virtue. So for example, the guys who stormed the beaches at Normandy on June 6th, 1944 We're pro-aggression. We're pretty aggressive. Yep, we're there.

That was pretty aggressive. That was virtuous aggression. Or it can be a vice, crime, you know, abuse. That's an obvious sin. Guys who take the armrest when I'm in the middle seat. Bad aggression. That kind of aggression. So they've said that typical characteristics of masculinity, now again, not every male has all of the typical characteristics of masculinity. We're speaking in generalities. The typical characteristics of masculinity are bad rather than characteristics that can be shaped to the good or can devolve to the bad. So what's happened is that people have reacted to that and they've said, if you don't like the stereotypical male, we'll get a load of this stereotypical male. They have embraced the stereotype as an act of defiance against political correctness,

rather than shunning political correctness for the name of truth and virtue. And so I think that's the difference there. I think what's happened is we have set up a world in which the symbol of your authentic conservatism is the way in which you do the opposite of what political correctness demands. And sometimes that has meant embracing some pretty bad stereotypes, quite frankly. I wonder how this ties into conservative female stereotypes, because what I sort of hear you describing is that this is, I don't know, sui generis in a way. It's coming up in reaction to a societal pressure. Whereas I think the conservative female stereotypes have existed within the movement itself throughout.

Whether it's, you know, Nancy Reagan red to Barbara Bush pearls. It seems tied to first ladies, I will grant you in this moment. It seems tied to First Ladies, I will grant you in this moment. But then to this, you know, tough gun girl who is to the right of her male friends. You know, sexism doesn't exist. But that has always been within the conservative movement and a reaction to its own internal winds and storms. But what you're describing is actually a reaction external, which I think is interesting. Yeah. But let me ask you this. So you're an expert on second wave feminism, as we have talked about. I posit that there is the conservative view of the proper Republican woman

is itself reactive to pre-political correctness, second wave feminism. So you had, you were talking about how second wave feminism defined women as, they don't, they're not going to dress the way, you know, they're not going to try to go out of their way to be pretty. They're going to shun some of these stereotypical markers of feminism. They're going to do it quite intentionally. And so what's the cultural reaction to that? Oh, you're going to shun these markers of feminism. I'm going to embrace them overtly and ostentatiously. Well, that's a pretty good point. A very good point. Oh, did I make a good feminist history point?

It hurt me inside to say that. But I do think that what we're beginning to see is we're creating these archetypes that, these archetypes that, quite frankly, are, if you're out, if once you move outside of the conservative political bubble, start to look ridiculous. I was going to say, I mean, this is such a small, small, small, small group that is talking pretty much to each other on through social media and other things as compared to like, you know, the people in your bourbon circle last night. Right. Well, you know, but I would say that it does contribute to the alienation that people feel from sort of political culture. You know, how many how many women in America fit the stereotype, the new conservative female archetype of super pretty, gun loving, very feisty. Like, like, isn't that isn't that the three legs of the new Republican female career stool?

In my mind, maybe this ties back to our Tiger King conversation a little. People are looking for belonging throughout history. Yeah. But what social media has allowed people to do is find it like their group can come to them in a way like never before. They don't have to change themselves in order to find their group because they can look way outside their community, their their town, their state, and they can go like sort of cherry pick these groups. And so I think to some extent it's still the search for belonging. It's just that that group of people has found each other and decided that they are the new conservative female stereotype,

the same way that these men have decided that this is what masculinity is, even though nobody else agrees. I have biceps while I scream into the camera at Fox News. Do they have biceps? And people, you know, you laugh, but we know who I'm talking about. Like there's more than one person who fits that kind of model. And it's really become a sort of a part of this whole thing is I'm extremely physical tough, physically tough. I'm extremely angry. I know guns very well. I'm going to let you know all three of those things at all times, which tell me exactly nothing about the actual true virtue of your masculinity. And on that note.

Yes, that's a good stopping point, don't you think? I think so. I mean, my cat has just decided that today's podcast is a no-go. So if you agree with Zoo, Zooey is his full name. Apologies. I don't know. He's very worked up about today's topics. Well, and listeners, please weigh in. Again, David at thedispatch.com, Sarah at thedispatch.com. Is Adrian Vermeule pulling our leg? It's a long leg pull. Long. It's long. It's long. It's on The Atlantic. You can Google it. And it's called Beyond Originalism. So you can read it, read it all. Tell us if he's pulling our leg or if I'm right, that he's actually really serious about this. And he's sort of trying to push the Overton window

on authoritarianism and in a particular direction, which I think he's actually trying to do. And also, I'd love. I think you and I should have another conversation about originalism versus textualism. Maybe it's kind of short, but maybe we can invite someone in to have that. Oh, that'd be fun. Yeah, we should do that. So think of all of the millions of people you know, Sarah. Yeah. And which one would be best to invite in? I was thinking of all the millions of people who will tune in for originalism versus textualism. Look, our view is, as you know, give the people what they want and they want more originalism versus textualism.

Maybe. We'll see. Email us and let us know. Yes. And also, I'd love your thoughts on the masculinity conversation. Give us your ideas. Is this even a relevant topic? I tend to think it is, but love to hear what you think. And as always, please rate us on Apple Podcasts and please subscribe. And thank you very much for listening.