Advisory Opinions - The Future of the Federalist Society

Episode Date: November 17, 2022

Haggard and sleep deprived, Sarah and David buckle down for an extra-long episode that covers student loans, court sanctions, gay marriage legislation, more FedSoc speculation, and [deep breath] the founding principles of the United States. Ready thy popcorn. Show Notes: -Sanctioning Trump's lawyers -Codifying gay marriage Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And this is a first. This is a re-recorded introduction. And it's a re-recorded introduction because when we finished the podcast, we realized that all of the best stuff was at the end of the podcast. And we wanted to just go ahead and tell you that this is one of our favorite podcasts and it's all because of the second half. So stick with us.

And Sarah, here's why. Maybe even more, like the 45 minute mark, let's be honest. Maybe the 45 minute mark, but it's a long podcast. It goes like an hour and 20 almost. Touche. Here's how we can excuse ourselves for not getting the order right. We're both sleep deprived for different reasons.

So I'm sleep deprived for a good reason. Yeah, I'm sleep deprived because I made the poor decision to eat a deviled egg that had been out for a while. Yeah, that's a bad reason to be sleep deprived. I'm sleep deprived for a fun reason, which I'm in Miami and the Artemis one space mission to the moon blasted off last night at like 1 45 AM. I was on the beach watching it ascend gracefully into the sky from about a hundred and some odd miles from Cape Canaveral. And it was still the brightest object and most glorious object of the sky as it ascended to the moon. It's amazing. America, America.

Are you going to finish that? Nope. This is a podcast for children. Exactly. All right. So we're going to cover student loans. We're going to cover sanctions. Then it's going to get good because we're going to cover marriage. We're going to cover sanctions. Then it's going to get good because we're going to cover

marriage. We're going to cover the future of the Federalist Society and a really fun conversation about the purpose and meaning of the Declaration of Independence and how it relates to the Constitution. So buckle up for that last part. It's good. Enjoy. What's that Nick Cage movie where he steals the Declaration of Independence? It's basically as good as that. National treasure. This is a national treasure. This is the national treasure of podcasts. No question. No question at all. All right. So first, student loans. We have two cases to talk about. We have a case out of the Eighth Circuit that is in joining the, implemented a nationwide injunction against the Biden Loan Forgiveness Plan that is an injunction pending appeal

that primarily dealt with standing. It was an interesting opinion, relatively short opinion. But if you recall, we talked about this. This is the case filed by states in which a formal Missouri government loan administration program was the hook for standing. And the district court had dismissed the case saying that there wasn't standing in large part because the relationship between the state and the entity created by the state for loan administration, that they were not

in essence the same thing, that this entity created for loan administration may have had standing, but that didn't bring the suit. The state brought the suit. The aid circuit says, no, no, no. The entity created by the state still impacts the state. It still provides financial resources. There's a financial impact to the state. And so therefore, there is going to be standing. And then what's interesting is that the injunction pending appeal didn't really dive into the merits much at all, Sarah. It just said there's a substantial question that is raised and the balance of the equities favors granting the injunction. It did not dive into whether or not the Biden administration program actually matches statutory authority or is derived from legitimate statutory authority.

It essentially says it's a substantial question because the balance of the equities really is inclined towards stopping the program while we decide this, that there's a lesser showing of success, likelihood of success on the merits that's necessary. Your thoughts? You know, we always talk about those factors for injunctive relief. And of course, they are just factors, As in, if one factor is really, really strong, you would assume then that another factor could be weaker. But that's not normally how the courts treat them. You kind of got to check all the boxes at some sufficient level in order to even get to the discussion. Here, you're right. That's not really what they did.

They said, because the equity part is so strong, i.e. if we don't put in the injunction and stop the student loan forgiveness from moving forward, you can never claw that back, basically. That we're not really going to even think about likelihood of success on the merits. Interesting. Yeah. And that, again, I think that's, you can kind of sense why that's not usually the standard because all sorts of things are irrevocable in some way, but if you're going to lose your lawsuit, we don't just put them on pause for six months either. So I wish they had used the more traditional injunctive route and more of the standards for that. You know, they were using quotes that aren't particularly famous when it comes to the standards for injunctions, for

instance. Now, circuits are circuits are more likely to quote themselves than sort of the super famous ones that we're kind of used to from the Supreme Court. Just kind of depends. But because I also am not sure that they wouldn't have reached the exact same result. So, A, likelihood of success on the merits, I think is an interesting question because does merits mean the merits of your entire lawsuit, i.e., do you have standing?

Or does it mean the merits of whether the student loan forgiveness program is unlawful? They do address the standing merits question a little. They find that they do have standing because you've got to have that even to get in the door for the injunctive relief. Yeah. And then I don't, I still have not seen any legal scholars really argue that the underlying student loan program itself is actually lawful if someone had standing to challenge it, i.e. they have high likelihood of success on the merits, actually. So why not use that standard? So weird. You know, the standard that they use and that they quote is they say, in circumstances where the movement has raised a substantial question and the equities are otherwise strongly in his favor, the showing of success on the merits can be less. OK, that's what I mentioned a little bit earlier. I paraphrased a little bit earlier.

But less showing of success on the merits can be less is not the same as not really much at all. And not addressing it. Not addressing it. So here they talk at some length, it's a very short opinion, at some length about standing, but really not at all about the underlying legal merits of the Biden plan itself. I mean, it's just not there. So you get to this part, it says, having addressed the threshold standing issue, we turn to the balancing the equities

and the probability of success on the merits. And I'm thinking, aha, here's where it gets good. And then it says, not only did the merits of the appeal before this court involve substantial questions of law, which remain to be resolved, suddenly it's getting less good, but the equities strongly favor an injunction considering the irreversible impact the secretary's debt forgiveness action would have as compared to the lack of harm an injunction would presently impose. But that's not getting to the merits. And then it says there's one more sentence in there. And then it says, we conclude the equities of this case require the court to intervene to

preserve the status quo pending the outcome and the states have satisfied the standard for injunctive relief pending review. So it says that they satisfied the standard, but they don't explain at all how they satisfied the standard. So I understand some of the objections I saw circulating on Twitter to this opinion. if Missouri has standing, if Missouri has standing, that the actual merits do favor an injunction. And we can get into the nationwide aspect of this that we've talked about ad infinitum on other podcasts. But I would have liked to have seen a paragraph or nine or maybe 11 on the actual merits. I hated showing my work, though, in school.

I did. I got dinged for that a lot, as you can probably guess. But now I like to show my work. Yeah. So that's one case. So it is enjoined. We do not have any actual reasoning on the merits. But there's another case, Texas case, district court case.

And Sarah, you've got the details on that. Yes, this is the Northern District of Texas, Judge Mark Pittman. And if you remember that name, it's probably because this is the same judge that enjoined SB8, that Texas bounty hunting abortion bill or law briefly. So before we dig into this one, I do think it's worth a second because this got a lot of criticism from sort of the online legal left. And none of them mentioned the fact that they loved his SB8 injunction. And so to the extent you want to criticize this, you're going to have to show me how he was applying a different standard to the two because while i think what i'm about to to talk about is a little injunction trigger happy so was the sba thing as it turned out

right um in which case he's just applying a relatively loose standard to injunctive relief entirely okay, you can disagree with that, but then you've got to do it consistently online legal experts that I use in some quotes here. So, this is the case with the two plaintiffs,

one of whom would be eligible for some student loan relief, but not a lot. They didn't have Pell grants, and the other one wouldn't be eligible. And their argument for standing is, well, we didn't get to make our case as to why eligibility should be expanded because this didn't go through the Administrative Procedures Act notice and comment. And if it had, we would have commented. And so that's our standing and that's our injury. It's a process point. The problem is that the HEROES Act that the Biden administration bases this executive action on specifically exempts actions taken under the HEROES Act from

the APA. But their argument for that is, yeah, but we don't think you can do it under the Heroes Act. In which case, you did need to go through the APA. It's a little... You got to jump through a few hoops there, David, to follow why they have standing, if you follow me. Okay, but Judge Pittman is like, yeah, yeah, yeah. Look, this is, um, a big thing.

It should have gone through Congress. And if it's not, we're going to hold it to a high bar. And so he's very willing to follow their logic that the question, the legal question is out there of, sure, if they could have done it through the HEROES Act, then it didn't need to go through the APA. But that is telling me to assume that they were able to do it through the HEROES Act, which of course is the whole legal question to begin with. And he says, we take the pleadings in the light most favorable to the plaintiffs. In that case, I will assume that they couldn't have done it under the HEROES Act. Therefore, they had to follow the APA. Therefore, they didn't go through notice and comment. And therefore, these people were injured when they did not have the ability to advocate for expanding eligibility. I will acknowledge one criticism of this logic, though,

which is part of having standing is also that there's a remedy for your problem. And while on the one hand, the remedy in theory is that you knock this down so that they have to go back through notice and comment. Of course, in reality, this is just being enjoined. It will be knocked down and nobody gets any benefit, i.e. they don't have the remedy. There is, you know, you can't make them go through notice and comment on a new one, whatever. But I do think Pittman here is being consistent. I think you can read not really so much between the lines as directly on the lines. Let me read you the first sentence.

The Constitution vests all legislative power in Congress, period. So he's not amused with the way this whole thing went down. He clearly believes that this is a legislative type decision. And it's a well-reasoned, well-written opinion, whether you agree with it or not. Now, again, we've seen this before. It's going to go straight to the Fifth Circuit. I think at

this point, we're in a race between these two cases now, the APA notice and comment case and the Missouri et al. state injury case of who gets to the Supreme Court first. And I continue to believe that the, and if we've referred to and quoted from an Ilya Soman analysis in the Volek Conspiracy a number of times, that the state case with state loan administrators

is by far the strongest standing case. Absolutely. Absolutely. Also, just because of Supreme Court precedent where they have in the last 15 years been incredibly lenient when it comes to standing for one group of plaintiffs. And those plaintiffs are states.

Everyone else, high, high bar. You've got a scale, climb, grapple, hook your way up. States, here's the front door. And you have justices that are annoyed with that and they will want to apply it in retribution true but yeah it's daca it's dapa it's travel ban um so yeah absolutely absolutely so we'll keep our eye on the eighth circuit they are going to issue an opinion that will address the merits. Just curious that they didn't really address them so far. Yeah, I mean, remember, we're still at injunctive relief stage.

So appealing the injunctive relief part. Oh, also on the Pittman thing, what was fun there is he treated their motion for injunctive relief as a motion for summary judgment. Granted that self-created motion and granted summary judgment to the plaintiff. So this is nicely teed up, not on the injunctive track, but actually on the merits. And by merits, I mean the whole case now moves to the Fifth Circuit. The Eighth Circuit is also got the merits. They simply were deciding the injunctive part first as they wait to hear the merits. So again, we're now going to have both of these oral arguments at the Fifth Circuit and the

Eighth Circuit. That'll be a few months. From there, it'll be a few months from there. It'll be a few months for opinions from there. UT up to the Supreme court. We're definitely looking at next term. Yeah. All right. So that's student loans. Are we ready for sanctions, Sarah? I love rule 11 sanctions. I think there should be more of them. I agree with you. I agree with you. This, so the reason for the discussion about sanctions, and I can't believe we've not really talked about sanctions very much at all. I think we've talked about sanctions. We should rule 11 ourselves for not talking about rule 11 more. What is our problem? We talked about it briefly after some of the debacles surrounding the

election. And we've got another debacle around an election, the 2016 election, and it involves a lawsuit that was filed by Donald Trump some time ago that we didn't even bother covering, as I recall, Sarah, because it was just so transparently frivolous. It was written in crayon. And I mean that only half facetiously. Yeah, that's an insult to lawsuits written in crayon. But it was. So here's the setting. A federal judge on Thursday, the Washington Post piece, a federal judge on Thursday fined lawyers for former President Donald Trump more than $66,000 and admonished them for filing frivolous and baseless claims in Trump's defamation case against Hillary Clinton and her allies stemming from the 2016 presidential election. The fines levied by Judge Donald M. Middlebrooks, a President Bill Clinton appointee in the Southern District of Florida, include a $50,000 sanction to the court and an additional $16,274.23 payment to one of the 29 defendants in the case, Charles Dolan, for expenses he

incurred as a result of the suit, which the judge dismissed in September. And Dolan's story is really, it's just sort of typical for how frivolous this case was. And in response to the case, so Dolan was accused of being a, of helping create the dossier, the Steele dossier, called him a former chairman of the Democratic National Committee, a senior official in the Clinton campaign and a close associate and advisor of Clinton. from the lawsuit noting in court papers that Dolan did not participate in the creation of the dossier, had never been chairman of the DNC, and said that his role in the campaign was limited to knocking on doors as a volunteer. So it's no wonder that he receives a sanctions payment. And it was sanctions under Rule 11 of the Federal Rules of Civil Procedure. And Rule 11, Section A says, and what does this mean? It says every pleading written motion and other paper

must be signed by at least one attorney of record in the attorney's name or by a party personally if the party is unrepresented. And then it says by presenting to the court a pleading written motion, whatever pleading you're presenting, you are saying that is based to the best of your knowledge, information, and belief formed after an inquiry reasonable under the circumstances that the paper is not presented for any improper purpose,

such as to harass, cause unnecessarily, delay, needless increase in cost of litigation, that the claims, defenses, other legal contingents are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law. The factual contingents have evidentiary support or if specifically so identified will likely have evidentiary support and the denials of factual contingents are warranted on the evidence. That's kind of a complicated way, Sarah, of saying quite simply, file pleadings in good faith. Just file pleadings in good faith. And then if you don't comply with

Rule 11, you can be sanctioned. Now, sanctions are not that common. They're really not certainly relevant to the amount of frivolous motions that are filed. Yeah. So what are your thoughts on this and rule 11 more broadly? Just to re-emphasize the idea that you can file a lawsuit in which, the idea that you can file a lawsuit in which, you know, you have a wild new legal theory on property rights, for instance, that no court has ever adopted. You know, you're thinking of writing a law review article about it and it was rejected from every law review. That's not rule 11able. Right. Your, your wacky idea, if filed in in good faith that is supported by logic and fact even if it is never nobody in their wildest dreams has ever thought of that idea not sanctionable what's sanctionable is when you absolutely know what you are writing is dumb. You're not doing it because you actually want to win a court

case. You're doing it to harass the other side for a press release, basically. Or you are so sloppy. And I mean, to the extreme that you have offended the court and they now presume that your sloppiness is bad faith. Isn't even right there. It's like, you're, you're so sloppy that you have no respect for the court. Yeah. And,

uh, they checked many of those boxes really though. He seemed most offended by the sloppiness because in this case, the plaintiff, the quote unquote, former head of the DNC, uh, has never worked for the DNC in his life. Anyway, he sends a letter to them ticking through all the things that are wrong with their initial complaint. He's not the head of the DNC.

He doesn't live in New York. He's never lived in New York. He's always lived in Virginia. And so then they amend their complaint, change him to the former head of a national democratic organization. Huh? What? So they did change it. So they read his letter, they amended their complaint and then didn't bother to change the fact that he was domiciled in Virginia and not New York. And the court was just like, you gotta be kidding me here. that he was domiciled in Virginia and not New York. And the court was just like,

you gotta be kidding me here. Nope. The entire crux of your argument isn't real. You know it's not real. You didn't try to support it with any law or facts or logic. It was a press release that you wanted to get attention for and drag this court into.

He seems annoyed by that, but frankly, not nearly as annoyed as he is by the lack of respect shown in the amended complaint where they continue basically to harass someone that they now are very much put on notice has nothing to do with this. Yeah. You know, and sanctions are a critical tool. I mean, sanctions have been used against, for example, the Sidney Powell legal team after some of the really spectacularly frivolous filings in the election contest period. They're a critical tool because, you know, one of the core elements of the sort of

the entire moral and legal ethos of the justice system is kind of a put up or shut up. In other words, if you're going to make an argument, if you're going to assert, make factual claims, there's going to have to be a there there. And if there is no there there, and especially if you know there is no there there, or you should have known there is no there there, then you don't belong in this forum. This is not the forum for you. The forum for you might be a late night hit on OAN. The forum for you might be a spot on a far right radio network, but this is not the forum. And I think it's a critical tool,

not just in politically charged cases, but in all kinds of cases where people turn to the legal system without a good faith basis for believing that they have the legal system without a good faith basis for believing that they have the right to receive a remedy. Because, Sarah, one of the reasons why sanctions are so important is when you're involved in the legal system, in many ways, the process is a punishment. Being brought into as a defendant in a lawsuit, as Dolan was, being brought into it is a burden.

And we don't want a legal system where people are burdened through frivolous or vexatious claims. And like you said, rule 11s, judges are very, in general, very reluctant to impose rule 11 sanctions. You really have to, outside of a few jurisdictions where judges are a little bit

more ready with the trigger, it's a general matter. You really have to screw up. And so when you're reading a story that says so-and-so was sanctioned, what you're hearing is their conduct was beyond the pale. And $16,274.23 to Charles Dolan, awarded here, and $50,000 into the registry of the court. So again, the individual defendant recoups his costs, though, again, nothing can bring back your time. But just to show you how offended the court was by the whole exercise and what a waste of time and judicial resources he thought it was, $50,000 in court time, he believes, which can feel kind of low. I mean, there's counsel one, two, three, four, five, five who who are gonna split that $50,000.

So it was not too high an amount, David, frankly. I could have imagined a judge doing a much higher amount that might not have withstood an appeal. I think this feels very constrained. They have already announced they're going to appeal. Good luck. I think this is going to be spot on. Yeah, no, absolutely. So can I tell you a story? Yes. Story time. So to tell you how

rare sanctions are. So as many listeners know, I litigated for 21 years before I became full-time in the journalism world. And in 21 years, I saw sanctions imposed in one of my cases exactly one time. And to tell you how egregious it was, this was a case where I was representing a securities company. Someone had filed a securities fraud claim against the securities company, a stockbroker, and then just dropped it. They refused to prosecute the case. And there are many courts have court rules where if you don't do anything, like if you don't notice a deposition, if you don't file a discovery request, if you just don't do anything, then a defendant can file a motion to dismiss for failure to prosecute, that the case just can't be filed and left. So this case had been filed and then they hadn't done anything

for a year. So I filed a motion for failure to dismiss the case for failure to prosecute. To defeat the motion, they noticed a deposition. And they said, we want to depose your client in this town in Kentucky on such and such day. I go down to the deposition with the client and guess what? The plaintiff doesn't show up. Plaintiff's counsel doesn't show up. Nobody shows up. So go right back to my office, file a motion to dismiss for lack of failure to prosecute, argue that they shouldn't be able to notice the deposition again. All this is boring, I know, but here's where it gets exciting. and be able to notice the deposition again. All this is boring, I know,

but here's where it gets exciting. So I go to the court and I'm half expecting the plaintiff's lawyer not to show up. So he shows up and he says, Your Honor, I would like for Mr. French to be sanctioned. We had a telephonic agreement to postpone this deposition. And I said, No, Your Honor, we did not. And he holds up

a tape and he says, I have the agreement to postpone this deposition on tape. I taped the phone call. The judge says, now bear in mind, rules of ethics in the state where that you, a lawyer cannot tape another person without their consent, but let's put that aside. And the lawyer and the judge says, play the tape. And he says, well, it's not this tape. I'm not making this up. And the judge says, why did you bring a cassette tape to the court if it wasn't the tape? And he said, because I wanted to show the court what the tape looks like. And unbelievable.

So she says, I'm going to give you a week, come back to the court and play the tape. And so we go a week and I'm just stumped because I'm thinking, did I black out? Did I, you know, what is going on? Was I in some sort of blackout drunk? Because I don't recall where I called him and I had no recollection of postponing the deposition. I show up a week later, I'm still saying, your honor, no. And she said, well, look, the tape will tell the tale. I'm still saying your honor. No. And she said, well, look, the tape will tell the tale.

And so he takes out a tape and he puts it on the table next to the tape recorder. And she says, why aren't you putting it in? And he says, it's not the tape. He's still, he never taped the call. He was bluffing the whole time. That's a weird thing to bluff about though, because like, you know that you didn't say it. It's a weird bluff. Right. Yeah. That's a weird thing to bluff about though, because like, you know, that you didn't say it. It's a weird bluff. Right. Exactly. So not only did she sanction him, she barred him from practicing law in her courtroom. Yep. There you go. Yeah. So that goes like lying to the court, dragging it out, continuing to lie. Like that's going to get you real serious sanctions yeah but i was a young

attorney and when somebody pulls out a tape and says i have this this and it was my first appearance in her court and i have no recollection of it happening but he's waving a tape in the air these sort of weird cognitive dissonance slash odd panic even though you never did anything wrong. It's, it's tough to describe. So thus end of story time. You know, that feeling where you don't get into a car accident, you know, the car swerves over into your lane and you miss it, but yet it was a near miss or whatever. It's like that feeling where you didn't get into a car accident, but as you drive, you're like, oh my God. Yeah, exactly. It was the strangest thing.

The absolute strangest thing. Okay, next topic. Bill filed, apparently, with a pre-agreement of Republicans. Now, you know, we won't know until it's all said and done, but there is apparently an agreement, not so much on codifying same-sex marriage nationally, but what it would do is require states under full faith and credit to recognize a marriage entered into lawfully in another jurisdiction.

So the bill would guarantee that valid marriages between two individuals are given full faith and credit regardless of the couple's race, sex, ethnicity, or national origin. But the bill would not require a state to issue a marriage license contrary to state law. Okay, so all of this is in case Obergefell is overturned, which, Sarah, I don't think it will be. But it's a law designed to protect same-sex marriages that are entered into under existing state law in states that recognize same-sex marriages even after Obergefell and says that, say, for example, if you get married in Massachusetts and Tennessee decides not to

recognize same-sex marriages, Tennessee still has to recognize a marriage entered into in Massachusetts. Yeah, Tennessee doesn't have to let you get married in Tennessee, but they do have to let you get married in Massachusetts and live in Tennessee. Exactly, exactly. And what the bill does is it goes out of its way to protect religious liberty. So under the bullet points put out by the senators, it says protects all religious liberty and conscience protections available

under the constitution or federal law, including but not limited to the religious freedom restoration act confirms that non-profit religious organizations will not be required to provide any services facilities or goods for the solemnization of or celebration of marriage guarantees that the bill may not be used to deny or alter any benefit right or status of an otherwise eligible person or entity, including tax-exempt status for those institutions that don't recognize same-sex marriage. And make clear the bills does not require or authorize the federal government to recognize polyamorous marriages.

So essentially what it's saying is if we pass this law, So essentially what it's saying is if we pass this law, A, a state cannot nullify a same-sex marriage entered into in a state that recognizes marriage, and nor can you use same-sex marriage to overcome a state recognition or federal recognition of same-sex marriage as a grounds for, for example, revoking the tax exemption of, for example, a religious school that objects to same-sex marriage or doesn't recognize same-sex marriage. And it doesn't impact not just the underlying constitutional First Amendment framework of religious liberty. It also doesn't impact the Religious Freedom Restoration Act. So very interesting compromise legislation, Sarah. Very interesting. I have questions for you. Okay. How does Masterpiece Cake Shop come down if this had been law?

No different. No different. Because Masterpiece Cake Shop was decided under the free exercise clause and was decided under and on the basis of targeting Jack Phillips based on his religious beliefs. Does it, would it affect a case like 303 Creative? In all likelihood, again, no, because 303 Creative is also a First Amendment case primarily. So this isn't going to touch First Amendment, obviously cannot touch First Amendment jurisprudence. And also both Masterpiece Cake Shop

and 303 Creative are responses to state law and the Religious Freedom Restoration Act doesn't protect against violations of religious freedom by state entities. So come up with an example

where this law would protect some religious act that would otherwise be in litigation, like be sort of a 50-50 coin flip in litigation. Yeah, so here's where I think it would come into play. Let's suppose you have a federal grant-making program or a federal student aid program, and the federal government says we are not going to provide, say, Pell Grants or not allow Pell Grants or GI Bill to be used at schools, religious schools that don't recognize same-sex marriage. religious schools that don't recognize same-sex marriage. That's where you're going to implicate the Religious Freedom Restoration Act because it would be a federal regulation imposed on religious institutions on the basis of their stance regarding marriage.

Or if the IRS said, we're going to treat religious institutions that don't recognize same-sex marriage the same way that we treated Bob Jones University when it didn't permit interracial dating. So in that circumstance, it's restraining the ability of the federal government to use the recognition of marriage as a reason for taking action against a religious nonprofit. So what do you think of it, David? Is it enough on the religious protection side for you? I think clearly, yes. I mean, I don't, there are a number of people

who are on the right who are arguing no. But I think if you're maintaining the Religious Freedom Restoration Act and you're specifically protecting nonprofit status, then you're encompassing sort of and you're safeguarding against the consequences of recognizing same-sex marriage, the religious liberty consequences of recognizing same-sex marriage that a lot of people worried about prior to Obergefell. lot of people worried about prior to Obergefell. So I do think by maintaining those explicit religious liberty protections, you're removing the big chunk of the objections. And just to put this in context, other statutes, proposed statutes regarding, say, for example, protections for LGBT Americans, like the Equality Act, in their, the way they were put forward, they would repeal RFRA to the extent that RFRA,

the Religious Freedom Restoration Act, implicated the Equality Act. And that was sort of the line in the sand that a lot of senators drew to say, wait a minute, you're actually taking aim. This is not just about LGBT equality. You're actually taking aim at religious freedom by repealing RFRA to the extent that it's implicated by the Equality Act. And if you specifically preserve RFRA and you specifically preserve, for example, tax exemptions on the tax

exemption front, for example, you might, there's an argument that you might be actually strengthening at the end of this bill religious liberty protections for religious entities and nonprofits. So I think in the religious liberty context, it satisfies concerns. Can I tell you something I find interesting about it? Yeah. So here we are in 2022. 2022, there's 10 Republican senators-ish, we don't quite know how many, but a filibuster-proof number who are willing to sign on to this bill.

It will become law. It, of course, will actually have no effect on same-sex marriage because Obergefell is a higher ceiling than this. This, basically, Obergefell will be the ceiling. This will be the floor. So if Obergefell goes away the ceiling this will be the floor so if Obergefell goes away you've still got this floor but it is less protection than Obergefell currently provides

to same-sex marriage but the hypo you have to ask yourself is if this had been passed in 2010 would Obergefell have come out the same way? By which I mean Justice Kennedy. I cannot read Justice Kennedy's mind. I hope everyone knows that. But I got to tell you, I have real doubts that Obergefell comes down the way it does if there's a law in place that allows states to recognize same-sex marriage, provides full faith and credit in all other states,

but simply doesn't make all states perform their own same-sex marriages, like license those marriages themselves. And then from 2010 to 2015 or whatever, you have 20 states that then are issuing same-sex marriage licenses, 30 states that maybe aren't at that point just five years later. And that's what goes up to Obergefell. So just to the extent that you're a conservative who's still maybe miffed either about same-sex marriage or about the legal underpinnings of Obergefell, there was your screw up.

There were so many off ramps for Republicans. There was the civil unions. Remember that whole fight? And then there was exactly the bill that they're now going to do in 2022. Congrats. Well, you know, what's interesting, if you really sort of zoom back out,

you had this framework years ago that was called fairness for all. And I don't know if you've heard this formulation before, but it was another term for it is the Utah plan. you know, on the conflict between LGBT rights and religious liberty. And the Fairness for All framework essentially said, look, in the commercial workspace, and the details of different kinds of Fairness for All bills vary, but here's the overall framework. In the workspace, LGBT Americans are going to be protected from discrimination. In the religious sphere, in the nonprofit sphere, private religious associations are going to have their religious liberty protected. So you're not going to be required to officiate same-sex weddings if you're a pastor, you're not going to lose your tax exemption if you're a religious institution imposing traditional Christian standards of sexual morality. But at the same time, if you're running, say, you know, if you're

running an insurance agency, you can't refuse to hire somebody on the basis of their sexual orientation. And both sides of the conflict said no to this. The religious liberty sort of side said, no, it is not protective enough of individual liberty. The LGBT equality side said, no, it is insufficiently protective of LGBT equality. And sort of the view of each side was that we can win it all, that we're going to be able to get it all. And at the end of now more than a decade of litigation, what the Supreme Court has done effectively is create the fairness for all framework. So you have Bostock, remember? Bostock, which said Title VII includes both sexual orientation and gender identity. and then you have really robust litigation or really robust precedent surrounding religious freedom

on everything from ministerial employees of religious institution, the adoption agency, you name it. You've got really robust precedent protecting the religious freedom of private institutions. And when you look at it, you say, oh, that's fairness for all.

It just came through the Supreme Court over the objection of both sides of the debate. Which I guess to some extent, if you consider this almost a civil litigation metaphor, like, yeah, when neither side can agree on a settlement, more often than not, I bet the courts come down about where the settlement negotiations ended, where both sides thought they could do better. And here's where you are. Yeah, it's very interesting. And you're going to see some anger. You know, Ben Shapiro has said that if anyone who votes for this should not be in the Republican Party anymore.

Matt Walsh has said that. But just can I say something real quick about the framework for thinking about this and then we can move on to the FedSoc? So there were three main strands of opposition to same-sex marriage on the right. Again, generalization, there's gonna be parsing. One would be a constitutionalist argument. In other words,

look, the 14th Amendment does not codify same-sex marriage. Like that's not, you're talking about the original public meaning of the 14th Amendment. It is not codifying same-sex marriage. So that's what you'd call the constitutionalist. And that argument would say, look, the proper place for resolving this is the legislature, where the legislature has traditionally defined the bounds of marriage. Then there was a consequentialist argument. The consequentialist argument said, okay, and that was what you would often call sort of the civil unions versus marriage argument that they would say, if you recognize same-sex marriage, the consequences for religious freedom and the consequences for

other core constitutional rights, like freedom of speech, are going to be profound. So on that basis, over concern for the consequences to other core constitutional rights, there was opposition. And then the last one would be what you might want to call the natural law argument, which is, one would be what you might want to call the natural law argument, which is, look, marriage is the union of a man and a woman, period. That's what marriage is, okay? If you're going to have any other arrangement, the state may protect it to a greater or lesser degree, but it is not marriage. Marriage is this thing, which is a union of a man and a woman. This has been something that has been a universal truth in human societies for millennia. So whatever the state wants to do to recognize unions other than marriage and to protect the rights of people in unions other

than marriage, marriage is what marriage, and marriage is a union of a man and a woman. And so I would say this legislation takes care of the constitutionalist argument, because you're talking about a legislative process within the constitutional authority of the legislature. In many ways, it takes care of the consequentialist argument by explicitly preserving religious liberty, but it doesn't address the natural law argument at all. So that's how sort of I think the discussion breaks down. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura

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Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's A-U-R-A-Frames.com. Use code advisory at checkout to save. Terms and conditions apply. I think that's a good segue to the future of the Federalist Society in a post-Dobbs world. Really interesting piece in Politico magazine by friend of the pod, Peter Kanellos. Y'all may

remember him because he was the author of that amazing book that I'm still super obsessed with and recommend to everyone. The Great Dissenter on Justice Harlan, who, of course, was the one dissent in Plessy. He actually writes this just very nuanced, interesting and deeply knowledgeable piece about kind of the history of the Federalist Society at this crossroads in a post-Obs world where they got their white whale. Now what? It's a really good question, David. And we talked about the Federalist Society Convention last episode. And I didn't talk a lot about that because I knew we were going to talk about this piece today. Yeah, it was a little strange.

So it was the 40th anniversary of the Federalist Society. Dobbs has just been decided. You expect something more at that point. But there was one panel on it during the conference. And then at the big gala dinner, the program, as I think I mentioned, was a little strange and hodgepodgey. There wasn't like a keynote. It was kind of all over the place. Everyone that I've talked to would describe it as a strange program, given what we're used to. But there was like one mention of Dobbs and it was in the intro to Justice Alito. Basically like, here's the guy who wrote Dobbs.

And certainly, look, Justice Alito, all of the justices, of course, get like standing ovations before they even speak. They get standing ovations after. So no question, Justice Alito got a standing ovation. But I don't know. I didn't feel the exuberance that one might. And certainly a hundred percent,

there's no question in my mind that it's because the midterm elections had just happened 36 hours, 48 hours previously. Yeah, boy, this piece was so good. It gave me so many thoughts. Yeah, boy, this piece was so good. It gave me so many thoughts. So I think, so one thing I think that's important about the piece is it really documents the rise of the Federalist Society from sort of underdog to apex predator. It's a good way to put it. Yeah. I mean, it's the most powerful legal organization in the United States right now. I don't think anything else is really close to it. And for a long time, so here's my theory, Sarah,

you tell me what you think. For a long time, the overall judicial philosophy of the Federalist Society was sort of indistinguishable from kind of the understandingist Society was sort of indistinguishable from kind of the understanding by Republican partisans of how courts should work. There was a real mind meld, and it was original public meaning of the Constitution, textualism, a strong aversion to judicial activism where judicial activism isn't so much defined as judges exercising their power,

but exercising their powers in non-originalist ways for achieving specific policy outcomes would be how you would, I think, classify what would be the Federalist Society Republican sort of view of what judicial activism was. Wait, David, before you continue, as a former Federalist Society Republican sort of view of what judicial activism was. Wait, David, before you continue, as a former Federalist Society president, every event that we had, I had to recite the three pillars of the Federalist Society, like it was the Pledge of Allegiance.

Can I please recite the three pillars of the Federalist Society? Oh, perfect. Yes, perfect. Welcome to our Harvard Federalist Society chapter event. We're so pleased you're here. There's sign-up sheets over there. There's wine over there. But before we start, let us recite the three pillars of the Federalist Society

and why we are all here. One, the state exists to preserve freedom. Two, separation of powers is essential to our Constitution. And three, it is emphatically the role of judges to say what the law is and not what the law should be. Play ball. I nailed it. I still got it.

Yes, it's perfect. And so under that standard, sort of what is the future of the Federalist Society seems to kind of be answered for itself. There is, you're an originalist, textualist organization, and you're going to continue to apply originalist, textualist readings and understandings and interpretations of the Constitution in your role as judges and in your role as sort of law professors and advocates, you're going to be engaging in scholarship on those grounds. You're going to be engaging in advocacy on those grounds, come what may. Okay. But the problem is the right is right now all over the place on what the role of judges

should be. It's all over the place on judicial philosophy. It is not united in the way that it should be. And so if you're an organization that has long had a mind meld with one political party to a large degree, not perfectly, but pretty close mind melt, and all of a sudden now, there are a lot of voices saying no, no. Everything from sort of common good constitutionalism, you know, the Adrian Vermeule construct to sort of more of the national conservatism, the vacuuming up of more power to the state and the use of the power of the state to disrupt the private power of the left, a lot of that stuff is going to run headlong straight into FedSoc judicial,

the traditional judicial philosophy of FedSoc judges. And nowhere is that more apparent than Florida, where Governor DeSantis has enacted a number of measures that just runs, would ordinarily, you would say would run straight into the brick wall of sort of originalist slash textualist classical FedSoc jurisprudence. But he's also the most popular Republican in America not named Donald Trump and a potential front runner for the Republican nomination. front runner for the Republican nomination. And so I think there's just a lot of cognitive dissonance. Does this mean that the FedSoc should adapt or should the FedSoc hold the line? And you can see this in chapters, Sarah, and we've seen it in chapters as we've gone around the country. I think there's still a majority who agree with the overall traditional FedSoc ethos,

but there is a dissident minority who take, quite frankly, what would have been considered a more progressive view of legal interpretations in service of granting state power, more state power to right-wing governments. And the FedSoc's going to kind of have to figure this out, it seems like. To put it another way, it's all fun and games to be for judicial restraint when you're restraining the other side. It's a lot harder when you have a 6-3 court and you're going to advocate for judicial restraint.

Hmm. That's where the rubber meets the road. It's for being for free speech when the Nazis are marching through Skokie. That's the only way I know you're for free speech, frankly. You know, you being for free speech, for speech you like, doesn't tell me anything about your character or principles. Yeah, I think it's fascinating. I don't know, you know, in my, the Federalist Society and I are the same age as I've mentioned before. However, I have only been around for fewer than 20 years.

I will tell you, I don't know that I felt like Roe was as central to the mission of the Federalist Society as this piece would. If you have no clue what the Federalist Society is and you just read this article, it would sound like the Federalist Society was basically created to overturn Roe. And now that they've done it, it's like, OK, it's like their Cold War has ended. What do you do in a post-Cold War foreign policy? That's not, that was never my vibe in FedSoc. That's a good point. It was always the litmus test for Supreme Court. I don't mean it was the litmus test. It always came up in conversations about whether there was a litmus test for judicial nominees and Supreme Court nominees and how you deal with confirmations and all of that, because I've been around for all of the current Supreme Court justices' confirmations, not involved in them all, to be clear. I just mean I was a member of the Federalist

Society for all of those. By the way, funny story. So if you remember, Alito was not the original pick for that seat. It was Harriet Myers, who was George Bush's White House counsel. And that met with a lot of resistance and gnashing of teeth from Federalist Society members. She was not particularly steeped in FedSoc world or constitutional appellate drama. And I was sitting next to one of my good friends in law school. He was my section mate. He now is my neighbor, a great human, but he walked into class the morning that that nomination had been withdrawn. And he is just perky as anything. And this will like date the entire episode. Um, but I, I sat next, I sat down, he sat down next to me and I turned to him and said,

wow, Brian, it kind of looks like you woke up next to Tara Reed this morning. As I said, dated reference. And he turns to me and says, no, Sarah, it looks like I woke up next to Tara Reid this morning. As I said, dated reference. And he turns to me and says, no, Sarah, it looks like I woke up and Tara Reid told me that Harriet Meyer's nomination had just been withdrawn. That's a good story. So like, that to me almost captures more of the zeitgeist of the Federalist Society

as a legal movement. almost captures more of the zeitgeist of the Federalist Society as a legal movement, then Roe was just never a central part of it to me. Also, interesting note, the one thing in the Canellos piece that I, but as I was reading it, like sort of my head shook a little, it says there are now six members of the Federalist Society on the Supreme Court. But of course, John Roberts' membership in the Federalist Society was a point of question in his confirmation hearings. He said he attended Federalist Society events, but was not a member, is my memory of that. As a current FedSoc member

and soon to be FedSoc president of the chapter that he said he wasn't a member of. I don't know that there's, you know, some, there was data to back up what he said, but I would say maybe five and a half members. And that was at the time, I would say John Roberts at this point is not considered a member of the Federalist Society.

I don't know what he would consider himself, but I don't think he would either. Well, you know, I'm going to agree with you because Roe and the Federalist Society, the view going way back was the Federalist Society has an originalist slash textualist bent and Roe's incompatible with that. It's just along with many other things, along with many other precedents. There wasn't a lot of debate about it, frankly, because everyone kind of agreed that Roe was an atextual, a originalist decision.

Whereas like Lochner has actually, there's endless debates about Lochner in the Federalist Society. There's panels at every single conference on Lochner because that's actually an interesting debate. Roe was never really a debate, but it also wasn't the focus. Right. It was not a debate and it wasn't the focus because the focus was on the philosophy.

So the simple answer to the question is, well, what does the Federalist Society do? It continues to embody and personify and advocate the philosophy. continues to embody and personify and advocate the philosophy. The psychological, that's the philosophical answer, but the philosophical answer abuts against the psychological answer, which is... We're in power. Let's do some stuff. Yes, we've got power. Or what if our allies, how long can we restrain our allies?

You know, because it's one thing to sort of say the conservative student group or the conservative professor should enjoy free speech rights and there are clear violations of the first amendment and academic freedom. It's another thing when it's a hyper woke academic diversity trainer in front of you and you've got to stop woke act and your whole sort of ethos and culture of the right is anti-woke. So that's when it really puts your principles to the test or when the whole ethos and culture of the right or a big part of it is saying, look, social media manipulates our elections and social media suppressed Hunter Biden and social media is the enemy of the people. And so here we're gonna regulate private businesses

in a way that you would traditionally not ever permit, historically not ever permit, but the Republic is at stake and everything you believe in and you hold dear, Mr. Federalist Society Judge, hangs in the balance. And by the way, all your friends want you hold dear, Mr. Federalist Society judge hangs in the balance. And by the way, all your friends want you to rule this way. And it's, so there is a, and most judges, to be clear, I mean, we have seen the FedSoc judges, and I've made this point and some of my friends on the

left bristle at it. Look, FedSoc judges helped save the Republic in 2020. Like it was unanimous FedSoc judges ruling against the Trump administration, top to bottom during the Stop the Steal effort. And so the FedSoc judges absolutely held the line. The question is, how long does it happen if the right continues to change is my question. Can I also just give an example? I don't normally do this, but I think it's one thing for us to sit here and sort of me conjecture about like, okay,

now your principles get tested because there almost sounds like I'm having an assumption that most of them will fail somehow. And I just want to be clear that no, I actually think quite the opposite, that those on the political right will be deeply disappointed to find that many, many Federalist Society members believe and will adhere to, to the end, those three principles, even when they're in power. And the best example I have of that is Judge Lee Rodofsky in Arkansas. He's a district judge, Federalist Society member. I've talked about him before. I was at his investiture. And this was that Voting Rights Act case, David, about some of the districts in Arkansas. And it was just an opinion imbued with humility.

Like, I don't know if I'm getting this right. I know that the appellate court will be looking at this. And so I'm trying to show all the work that I can so that they can review what I'm saying here, because that is how this entire system is structured. And he also said that his personal policy preferences differed from his opinion, his judicial opinion here. Congress should have expressly included

a private right of action in the Voting Rights Act. Cases like this one are important to pursue. The Voting Rights Act has been and continues to be a force for good and progress in our society. But they didn't include a private right of action. And so he had to dismiss the lawsuit in this case. It's just, it's one of those opinions that's going to stand up to me as sort of a quintessential, the mission of the Federalist Society in training future lawyers, current lawyers, potential judges, that opinion stands out to me. I agree. Here's my opinion that stands

out to me. This is December 5th, 2020. And this is the case, the caption, the case, you'll know exactly what I'm talking about. L. Linwood Jr. versus Brad Raffensperger in his official capacity as Secretary of State of Georgia. Seven-circuit case before William Pryor, chief judge, Jill Pryor, and Lagoa circuit judges. Opinion by William Pryor, chief judge, rejecting an challenge, December 5th, 2020. Now, why does that really matter that it was William Pryor rejecting an election challenge? Well, guess who was one of the judges on Donald Trump's shortlist for Supreme Court of the United States? William Pryor. So here's a guy who arguably has maybe some personal interest in a continued Trump presidency, and he rejects the legal challenge out of hand. So I think when I'm talking about sort of the

challenge to the Federalist Society by the evolving right, I'm thinking much more of the long term, how that works out five years, 10 years from now, if the right continues to evolve. As of right now, I feel I'm grateful that we have as many FedSoc judges in the system as we have. And I think my confidence in them has been nothing but vindicated over the court decisions under great stress and tension that have been rendered over the last three to four years. Yeah, the lawyers that were forged in the fires of being in the minority of the legal community are doing quite well. The question for the Federalist Society moving forward is how they are going to forge and mold those lawyers now that they're not in

the legal minority and what that'll look like moving forward. And this is not all at the feet of the Federalist Society. They don't have a magic wand. It's at the feet of the law students and their individual interests and principles. And we certainly talked about the common good constitutionalism, which is not part of the Federalist Society ethos, certainly, but will nevertheless be part of that debate moving forward. So yeah, fascinating future of an organization

that, as you said, I mean, apex predator at this point. And almost in my first couple years is when that really comes forward because it's the nominations of um roberts and then alito i would say was the real one where fedsock becomes an apex predator with the nomination of alito after the fall of Harriet Myers. Yeah. And then it builds between the Alito confirmation and Donald Trump re-releasing his Supreme Court list that is then basically overseen by the Federalist Society.

Not the first list, but the re-release one. Like, that is a, that is like a velociraptor when Alito gets nominated. And then just full-on Tyrannosaurus rex, gigantosaurus, which is a real thing, storming around legal communities.

I like the way George Will framed the purpose of the modern conservative, what he believes the purpose of the modern conservative movement should be, which is preserve the principles of the American founding, which I think is just a really wonderful one-word sentence to describe a purpose of a conservative movement. What are we conserving?

The principles of the American founding. The aspirations and ideals of the American founding. Which fits, the state exists to preserve freedom. That was a core principle of the American founding. Separation of powers is essential to the structure of the Constitution. Yep, that was clearly a core principle of the American founding. Separation of powers is essential to the structure of the Constitution. Yep, that was clearly a core principle of the American founding. Judges should say what the law is and not what the law should be. Obviously, that's taken from the Federalist Society papers, but I think it gets to a core

principle, which is you want elected self, you want self-government, you want a Republican form of government. elected self, you want self-government, you want a Republican form of government. And part of that is not having a judiciary that's sort of the non nine platonic guardians on the hill. Right. And like the judicial corollary to the political mission of preserving the principles of the American founding is preserving the meaning of the, the meaning of the constant, the written constitution is a judicial corollary to that sort of political mission. Oh no, because I have a follow-up question and we're kind of running out of time,

but I really want the answer. What role do you think the Declaration of Independence should play when we think about the principles of the founding vis-a-vis the constitution? Oh. Oh, well, so I don't, when you're talking about the principles

of the Declaration of Independence, not, don't really have any role to play in constitutional interpretation. They have an immense role to play, an immense role to play when you're talking about the political mission of the federal government and of state governments too, I might add, of government itself. So I look at it like this, that the Declaration of Independence is like a mission statement of a corporation. This is what we aspire to be. Remember how Google used to say, don't be evil, right? The mission statement is we're endowed by a creator of certain inalienable rights. Among these are life, liberty, and the pursuit of happiness. And then for this purpose, governments were instituted amongst men you know that just look at the declaration that's

the mission statement interesting the constitution is the bylaws but you don't think that when we're determining when we're thinking about the structure of the constitution that we don't go back to that mission statement if we've got a question because oh, oh, well, it could go either way. There's good arguments on both sides, but the mission statement says we're not supposed to be evil. So let's not choose the evil route. Right. Well, I think that that's where the Bill of Rights comes in.

I think the Bill of Rights is the legal interpretation of the mission statement. And in the Civil War Amendments, the combination, the combo of the Bill of Rights and the Civil War Amendments. Oh, I agree the Civil War Amendments, the combination, the combo of the Bill of Rights and the Civil War Amendments. Oh, I agree the Civil War Amendments are. But the Civil War Amendments take a while to come around. Yes. Yes. Oh, completely agree. The Civil War Amendments to me are actually the embodiment of the Declaration of Independence.

But you've got when we look back for originalism purposes at original public meeting, oftentimes we are, you know, 80 years before those Civil War amendments. And yet I think the Declaration still can hang over that conversation again in that originalism context. but you know what? I'm sure people in the comment section will have feelings on the relationship that the Declaration of Independence should have to legal and judicial philosophy. And I think that's a great invitation because I'm actually eager to hear because the interesting thing to me

about the Bill of Rights and the Civil War Amendments is in many ways, their articulation of legal principles that are broad and vague. Equal protection under the law, due process of law. These are not self-defining concepts, right? No Congress, what is the freedom of speech? These are things that are broad and vague. And I do think that in those circumstances, what you're looking at is that the Bill of Rights is the codification of the mission statement. The Civil War amendments are the codification of the mission statement.

And what I'd say about the Bill of Rights and Civil War amendments is you can't have the American social compact without both. And the big flaw of the original constitution was that the Bill of Rights really wasn't applicable to most American law. It wasn't. It was only applicable to federal law, which is a very small category of law. Now it's applicable to all American law, thanks to the Civil War amendments. But yeah, I'd be interested to see. See, I even think we could get into the Dobbs conversation with the Declaration war amendments, but yeah, I, I, I'd be interested to see. I even think we could get into the Dobbs conversation with the declaration of independence, right? That the self-evident truths, one of them is that they are endowed by their creator with certain unalienable

rights. That's where you get the idea of unenumerated rights in the constitution. And that natural rights theory comes from the declaration, not the constitution really. And so is the right to reproductive freedom, an unalienable right, even if it's not written, sure, whatever that is, but that's where the unenumerated rights sit for me in the U S constitution. They sit in the declaration of independence. Like you said, it's in the mission statement that there are

certain unalienable rights. They don't bother to list them. Well, they say they list three of them, life, liberty, and the pursuit of happiness. Categories, categories. Yeah, right. But the Bill of Rights clearly doesn't encompass all of those. The Bill of Rights never says life, liberty, and the pursuit of happiness. They give some specific ones that might help you attain those things. But nevertheless, It might help you attain those things. But nevertheless, there remain unalienable rights. And maybe that's what this entire, that most of our arguments turn around at this point on those unenumerated rights.

Yeah. I would just find that that broad formulation rather unhelpful in articulating what are the specific unenumerated rights. Maybe, but it certainly provides evidence for a natural law theory that the founding principles included the concept of natural law, that governments did not give you your rights. You were born with said rights and governments are there to protect those rights against encroachment from the government, potentially other people as well in some cases. And again, that that is in the mission statement, as you say.

There are ways to find it in the Constitution, of course. But I think the mission statement has to be part of that conversation. Anyway, I'm looking forward to the comments section. Yeah. Sorry. See, I told you I needed to go off on this tangent. No, I'm super interested. This is a great tangent, and I'm actually sad we're stopping because there's so much to say about this.

But yeah, please comment on this. One last thing, and then Sarah, have the last word on this. declaration of the mission statement, life, liberty, and the pursuit of happiness is then codified in the explicit language of the Bill of Rights saying that there's still more rights out there. We're not going to even try to guess at what they all are. And I guess you could say, okay, if I'm trying to make an argument in court as to why a certain specific assertion of an unenumerated right should be recognized if I can fit it within the broad category of life, liberty, and the pursuit of happiness. But those are big, broad categories. It's just hard to do it. But I do completely agree that the mission statement led to a codification and the codification is by itself quite broad and subject to interpretation but the thumb is on the scale towards liberty

if that if that makes sense i also think it's always fun to go read the list of grievances some of them end up in the bill of rights, as you say. Quartering of soldiers is almost just directly taken from the Declaration of Independence and put right in. He has made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries. Okay, that's going to get right into Article 3, fun times. But David, this is one of my favorites.

He has dissolved representative houses repeatedly for opposing with manly firmness his invasions on the rights of the people manly firmness indeed that's funny anyway I think the declaration of independence is under read we basically teach kids to memorize just those few sentences. And in fact, it's worth reading the list of grievances because again, if you're looking at the mission statement, you're going to want to see is the mission to end, for instance, the quartering of soldiers? Yes. Well, then that's a, that makes the really important in the third amendment, as we've talked about many times on this third amendment club podcast. So declaration of independence,

part philosophy, part Festivus. Oh, the airing of the grievances is so good. All right. Well, this has been a fun, eclectic and dare I say,

good podcast, Sarah. Dare you. So thank you. dare I say, good podcast, Sarah. Dare you. So thank, dare I say. So thank you so much for listening. We really look forward to these comments. So please, please bring it. Look forward to it.

Please subscribe. Please rate us. Please check out thedispatch.com. And we might be back next week,giving week uh i think we'll be back but not later in the week then we'll record the monday i will record after giving birth but i will not record for thanksgiving no sir yeah no you have your limits absolutely so thank you for listening and we'll be back soon Yeah, no, you have your limits. Absolutely. So thank you for listening and we'll be back soon.