Advisory Opinions - You’re Wrong About Originalism

Episode Date: May 22, 2025

Sarah Isgur and David French are joined by William Baude, professor at the University of Chicago Law School, to discuss the scandalizing origins of originalism. But first, a recap of SCOTUS cases. The Agenda:—Narrowing the Fourth Amendment— Where is Kilmar Abrego Garcia?—AARP v. Trump is an unfortunate case name—Facebook post raises eyebrows for Maine lawmakers—Correcting the color of our briefs—Dissents, dissental, disgrantle—Move over Robert Bork Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, ⁠⁠⁠⁠⁠click here⁠⁠⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Visit PCFinancial.ca for details. Value is for illustrative purposes only. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. We've got an action-packed pod. We're gonna start with that Supreme Court decision that we didn't get to last week. Barnes v. Felix about that police-involved shooting as the police officer jumps on the car as it moves away from a traffic stop resulting in the death of the driver. Then we've got the AARP decision from the Supreme Court.

Remember, it's not about old people. It's about the Alien Enemies Act. And then a case from the short order docket or interim relief docket, emergency docket, whatever you're calling it in your household these days. Libby about a Maine legislator who has been barred from voting in the legislature based on a Facebook post. I think David and I might have some disagreement about that one. And now we've got, you know, a little sundries

because our big entree for you today, it is meaty, chewy, delicious, is Professor Will Boat from the University of Chicago joining us to talk about a law professor who was perhaps the most famous constitutional law professor of his day has been forgotten to history and he may be the father of originalism. Oh, did I mention he's an FDR liberal? All right, David, let's jump in to Barnes vs. Felix. We covered this extensively before the

oral argument, after the oral argument. Well, now we finally have the opinion in which the court, perhaps not super surprisingly, says, yeah, you take in the totality of the circumstances when determining whether there's been a Fourth Amendment violation, not just the second that the trigger is pulled, but everything that came before it as well. This was a unanimous opinion. Kagan wrote it, but we've also got this interesting concurrence. Kavanaugh writing the concurrence joined by Thomas Alito and Barrett. Kind of an interesting lineup. What are your biggest takeaways from Barnes versus Felix now that we've got it?

Yeah, very not surprised about the outcome here. We said afterwards, after the oral argument, that this thing was going to go in favor of the motorist and against the police officer. But at the same time, it doesn't resolve the case. It just simply says, you applied the wrong standard. Now let's send it back. And so I think it's clearly the right rule, a totality of circumstances approach, sort of looking at the whole thing, rather than the very moment of death,

or very moment of the shooting. It's gotta be the right approach. I mean, this strikes me as extremely sound. What was interesting to me, Sarah, was as you're right, the concurrence was fascinating. And let me read just the opening paragraph. This is by Justice Kavanaugh with Thomas Alito and Barrett. I joined the court's opinion.

I agreed that the officer's actions during the traffic stop in this case should be assessed based on the totality of the circumstances. I write separately to add a few points about the dangers of traffic stops for police officers, particularly when, as here, the driver pulls away in the midst of the stop. Now, this is very interesting that they did this. You know what it actually reminds me of? Because it's four justices, not really articulating any kind of real suggested rule here so much

as just saying, cops have a hard job. It can be deadly dangerous, and we want that out there. And you know what it reminds me of? It reminds me of when you have a case that kind of cuts against or you have a case that cuts against a constituency, but in a way where you're not actually wanting to diminish or denigrate the constituency. And so you do something like, say, for example, Justice Kennedy did in Obergefell, where he

said, there are lots of people of goodwill who disagree with this ruling and they should not be treated poorly, et cetera, et cetera. This is like new standard, greater national accountability for police officers and shootings based on totality of the circumstances, but we know you have a hard job and this is not in any way designed to minimize the danger that you have as you approach your job. So it almost felt like in an interesting way, a concurrence designed to reassure police officers that there is judicial understanding

about the danger of the job. So how did you interpret that, Sarah? Well, I just want to refresh everyone on the facts. Remember, the driver has borrowed his girlfriend's rental car. And he's on a Houston toll road and the car has outstanding unpaid tolls. The police officer pulls over the car.

The guy is like, it's a rental and it's not my rental. So there's like no real reason to believe that this guy didn't pay the tolls at that point, but something happens and the car starts pulling away. There is so much disagreement about the facts in the second by second, how this could have happened. It doesn't really matter for our legal purposes, I'll tell you that. But as the car starts to pull away back onto the freeway,

the police officer jumps on the footsill of the car. Now he's between the car and the median of the freeway and the car is pulling into freeway traffic. The officer tells him to stop. He doesn't. The officer shoots and kills the driver. The question before the court was, once you're on the sill of the car, this is the moment of threat.

Obviously, you are in a life-threatening situation. Does it matter that you're the one who chose to jump onto the car and you didn't have to jump onto the car and it's for unpaid tolls and that's why you jumped onto the car? You and I had a bit of a disagreement about this, right? I obviously thought the moment of threat thing was a little bit weird, but as Justice Kavanaugh was pointing out at oral argument, it's easy to say this was the wrong choice because someone ended up dead. But can you imagine a choice where the police officer chooses not to get on the car and

as Justice Kavanaugh in his concurrence walks through the other options? Okay, you let the car go. Maybe that person is on drugs or something. Maybe they get into a car accident and kill someone as they're pulling back on the road to get away from the police. Maybe you hop back into your police car and chase the person. A high-speed chase, any chase is incredibly dangerous. Maybe the reason that person is pulling away is because they had an outstanding warrant or had committed some other crime that was very serious or

violent. Basically, there are no good choices, and we judge the choices in hindsight, which is exactly what you're not supposed to do in this Fourth Amendment context. So, as you said, David, I think this is the right rule. It's the totality of circumstances. But you do need to take in the totality of circumstances, not just the way things played out where we can second guess the choices looking back. You know, and that was, but I will say one aspect, and I understand the concurrence and I understand danger, but there was one aspect of this that

where he was kind of, Justice Kavanaugh was going to, under all this speculation as to what could happen if you let him drive away, okay? Well, jumping on the sill of the car is not stopping him from driving away. I mean, that's not creating an obstacle to him driving away. It's creating an extraordinarily dangerous situation for the officer without question, but it does not stop the car unless you shoot the guy. Unless you shoot the guy. And by that standpoint... Well, the hope is that he sees the officer on the car and stops because he knows that this is now a very dangerous situation. Like if he were accidentally hitting the gas pedal or whatever else, or thought for some reason that he was allowed to leave, that this would be the like-

I would be stunned if any police officer is trained that when a motorist pulls away to jump on the car, like that would stun me. I agree. It's so- Yeah. In this case, when you're between that cement median, even if the driver, the driver's going to panic no matter what, they might panic and head into the road, they might panic and hit the brakes, that's ideal, but they might panic and head back into the median

and there's now a person who's been crushed between the car and the median potentially, so not good. Also, if you hit the brakes hard, if you hit the brakes hard, that police officer goes flying off this. So there's no circumstance where jumping on the side of the car, although maybe in a kidnapping, something like that, where you do realize you're going to be using deadly force to stop this. But the way he talks about a police chase, look, I get it that police chases are very, very dangerous. It's one of the reasons why there's been a lot of reform on that point, maybe using helicopters, pulling back.

But you do not have a right to use deadly force to stop the initiation of a police chase. You can use deadly force if somebody is armed and dangerous and fleeing, but not just fleeing. And so I thought that these are all the bad things that could happen in a police chase. That kind of, I get it, yes, I get it, but you also should say very clearly that the fact that there might be bad things that could happen as a result of a police chase is not licensed to use deadly force to stop a police chase. And so that, I thought, was a little interesting that was put in there. I mean, everybody knows that police chases are not safe,

but also at no point can a officer just shoot somebody for the purpose of avoiding a chase only. And so, again, this was something that I thought was just a little bit interesting about the decision, because again, that's not referring to some sort of underlying rule. He's not amplifying or highlighting some sort of underlying rule that permits a use amplifying or highlighting some sort of underlying rule

that permits a use of deadly force to stop a police chase. So I found that to be a little bit interesting. So as you said, this was a unanimous opinion, but only an opinion to answer the question presented. Yes, exactly. As we've explained, the Supreme Court doesn't take cases, they take questions. The question here was, is it a moment of threat or is it totality of circumstances? And the Supreme Court's like, totality of circumstances, thank you for asking, and sent

it back down to apply that test now to these facts. What that concurrence does is say, and there's four justices who think under the totality of circumstances, this was not an unreasonable seizure, like XOXO, these four justices. So focusing on that for a second, why is it these four? Why not more? And remember, it's Kavanaugh writing the concurrence with Thomas, Alito, and Barrett joining. So of my 333 court, you get two from one bucket and two from the other bucket. What happened to our missing justices, Justice Gorsuch and the Chief Justice? So a couple ways to read into this. One is that Gorsuch, and I really like, it's a really shorthand way that's helpful to think about Justice Gorsuch's jurisprudence. Some people

call it libertarian. I think your anti-bullying explanation will get you to the right answer more often than not. And so maybe Gorsuch just isn't going to sign on to an opinion that's like police officers jobs are really hard. Because in his view, in the libertarian side, right, the government is more often or not the bully in this case. Right. Yeah. the government is more often or not the bully in this case. Right. Yeah. So that could explain Justice Gorsuch not joining it. The chief, of course, hates concurrences. He's really, really not going to join a concurrence if he can avoid it because that fractures the court. We've talked about the exponential rise of concurrences in the last several decades of the

court, and particularly the Roberts Court, the thing that Roberts wanted the least. He wanted to speak with one voice. He wanted more unanimous opinions. Fine, if there's a dissent, there's a dissent. But concurrences are like the worst of all worlds if you're the chief justice, because they are just speaking then in their voice as individual justices and not as the court, and it's not even changing the outcome. So that's why the chief justice isn't going to join your concurrence. Or you don't have to look to either of those explanations because what happens when five justices join a concurrence and there's also a unanimous opinion? What is that then, David? We don't

really know, which is why you don't see five justices join a concurrence. So it's also possible that it was sort of like the first three to join after Justice Kavanaugh circulated this and then everyone else was SOL, like you can't join our opinion because then it gets confusing. Yeah. When you have five justices in a concurrence, that sounds a lot like a majority opinion. But there's a unanimous opinion. But then the other four are concurring. Oh yeah. Yeah. But no, like everyone joined Kagan's opinion. So it's unanimous. Right.

But then there's a five justice concurring opinion. This is why they don't happen, because it would be too weird. Yeah, yeah, right. It'd be very weird. Okay, so that's Barnes v. Felix. Next case, AARP. Again, not about old people. It's about the Alien Enemies Act. If we could all go in and change the name of this case, I think we would. And by the way, probably not the end of this case, sort of like Barnes v. Felix. So David, why don't you remind us where we've been and tell us where we're going. So you sort of have, if we're talking about the Trenton Argua and the Alien Enemies Act removal cases, you sort of have, think of parallel tracks. There is one track dealing with, right now primarily this one individual,

Abrego Garcia, who is already in Seacat Prison in El Salvador. And there's a line of litigation about what do you do about the people who are already in Seacat. So Abrego Garcia is the most famous name, but the Cato Institute did a study of them based on the names that are known that have been deported and found that dozens, up to 50, were actually legally in the country when they were sent to CICOT.

And so there are going to be other names here of people who've been already deported who are trying to get out of that horrible prison. So that's one line of cases. And we have to talk about them together because it's obvious that one line is influencing the other. And then you have another line of cases, which are the people who are potentially susceptible to Alien Enemies Act removal, but are still here.

And that line of cases, so we've had the Supreme Court has upheld a portion of a district court order ordering the Department of Justice to facilitate Abrego Garcia's return. And as we know, there's been very little facilitation, very little effort to bring Abrego Garcia back. So in many ways, what the administration has turned around and said to the Supreme Court or to the court system is too bad, so sad, they're already out of our jurisdiction. Well, then we have another line of cases involving people who are potentially susceptible for

deportation and the circumstances are what process is due them. And this is the line of cases that culminated in the fine ruling that they're entitled to habeas relief in the districts where they are detained. They are entitled to due process before removal. Now that order did not say what process was due. And so here we are back to the Supreme Court on a, to call this a rocket docket, hyper docket, hyper docket might be more appropriate. And so here, let me walk through the facts of this case. On April 17, 2025, the district court denied the detainees motion for a temporary restraining

order against summary removal under the Alien Enemies Act. The detainees alleged that hours later, so it's April 17, they were denied. Puted of class members were served notices of removal and told that they would be removed tonight or tomorrow. On April 18th at 1234 a.m. Central time, so this is late night after the denial ticking into the next morning, the detainees move for an emergency TRO to prevent the removal. The detainees move for a ruling on that motion or a status conference by 1 30 p.m. At 3 02 p.m. they had not gotten a hearing. They appe appeal the constructive denial of the emergency tro. Do the fifth circuit the detainees also applied to this court the spring court for temporary jurisdiction.

We understood the government to assert the right to remove the detainees as soon as midnight central time on april nineteenth. 19th. The government addressed the detainees' allegations on April 18th, only at an evening hearing before the District Court for the District of Columbia, where the detainees had separately sought relief. The government guaranteed that no putative class members would be removed that day on the 18th, but it further represented that in its view, removal of putative class members as soon as the next day would be consistent with its due process obligations and reserve the right to take such action. So let's 17th denial of injunction, 18th a TRO request to prevent a removal. Just after midnight? Just after midnight. Okay.

The 18th, you then have by three o'clock in the afternoon, you have a response from the government saying we're not removing them on the 18th, but we could well remove them on the 19th. And so it makes its way up. At 12 52 a.m., we ordered the government, in light of these circumstances, not to remove any member of the putative class

in order to preserve our jurisdiction. We invited the government to respond to that application after the Fifth Circuit ruled. The Fifth Circuit then dismissed the detainees' appeal for lack of jurisdiction, denied their motion for injunction of pending appeal as premature on the ground that the detainees gave the district court only 42 minutes to act. So now the Supreme Court takes it as a petition for rid of Sir Sherrari from the decision of the Fifth Circuit. We grant the petition, we vacate the judgment of the Fifth Circuit and remand for further

proceedings. Essentially, the ruling was this is not sufficient due process. There was not sufficient due process when you're talking about a timetable that was coming within hours, not even days, within hours after a denial of an injunction from a district court. And this was 7-2 with Alito and Thomas on the other side of the decision. And it strikes me, Sarah, that I read a very interesting tweet and I, forgive me, I can't remember who said it, but he said that the Obrego Garcia line of cases is causing the Supreme Court to treat these removal cases

almost as if they're capital cases because the removal, because the administration is removing them and then sort of saying to the court, we can't do anything about it. They're realizing that they have no, that their ability to reach and protect the rights of these individuals is going to end the instant they're out of the country. And so they're intervening as if this is irreversible, completely, totally, utterly irreversible

harm here in the same way that an execution would be and are using that kind of extraordinary speed to intervene in the circumstance because of the administration's conduct in the other line of cases. I thought that was very astute and I'd love your thoughts on that. It's exactly right. This goes to maybe an overall umbrella of the presumption of regularity that if you're telling the court through your actions that you're trying to pull fast ones and that if you can pull one, there's also nothing they can do on the back end about it.

Remember, the court is very hesitant on those, the line of cases now that will say the Abrego Garcia one represents, there are prisoners or people being held in foreign countries all over the world and the courts can't jump in and demand that the executive do whatever it takes to bring them back. You can't demand that you negotiate with terrorists because it's an American who's being held unlawfully over there. However, I understand the situation is different. I'm not comparing them in terms of how he got there or anything. But at the end of the day, there is someone in a foreign country who should be brought back. The courts actually have very limited power to demand the executive branch do X, Y, and Z. And that's what the

Supreme Court has said. They're like, on the one hand, you need to facilitate his return because you caused this. On the other hand, judges need to have certain deference to what powers the executive branch may have to make this happen. Now, that's, of course, being litigated on what exactly does facilitate mean. Does it mean just not prevent it from happening? Like they've said, like if a Brega Garcia shows up at Dulles Airport, they'll let him in. But short of that, they don't need to do anything to get him to Dulles Airport. So you're right, David, that then in this line of cases where it's about, well, who's going to get sent out of the country, it becomes, there's a lot of finality to the whole thing, especially when then of course the government is being pretty clear that like,

yeah, they don't really wanna do this. They'll do the absolute minimum. And you have, for instance, the Secretary of Homeland Security being asked, what is the writ of habeas corpus? And responding, the writ of habeas corpus means the president can deport anyone here illegally in this country.

Oh my gosh. I think a lot of people were dunking on her thinking that that was a stupid answer that she didn't know what the writ of habeas corpus is. I think, first of all, this is like what's wrong with social media and all of that, but like, no, no, you're missing the point. She does know what the writ of habeas corpus is. She was giving a snide answer because the administration is saying through her answer they don't care about the writ of habeas corpus I don't think these people get to file writs of habeas corpus

Regardless of what the Supreme Court says now that's different than ignoring the Supreme Court They disagree with the Supreme Court and so they're gonna do the absolute minimum like you know when you tell your kid to clean their room and they just shove everything in a drawer and kind of shut the drawer and they're like, see, I did it. And you're like, oh, am I really gonna make like, what, how much of a fight am I willing to pick to make them clean it better? Like get the drawer all the way shut, fold the clothes, like that's what's going on here. So yes, David, I think you have a Supreme Court that's getting very frustrated with the administration and it's not containing it to a single case or even the line of cases. Because remember this goes back the original AARP case we said was Marbury-esque. Yeah. Although really we should be saying Marshall-esque since he's the one who wrote it,

but whatever. Marbury versus Madison-esque because you have the Immigration and Naturalization Act. That's all the thousands of immigration judges that are within the executive branch. They don't have judicial independence the way that Article III courts do. So if they try to deport you under the INA, you are entitled to very little process, but nevertheless, some process. In these Article II courts in front of these judges that are immigration judges, this is where you bring your asylum claim. You have credible fear of returning to your country. Actually, I'm entitled to lawful permanent resident status because of XYZ, or you have

the wrong person. What the administration did was say, we don't want to go through that INA process anymore, that in-house executive process. Instead, we want to trigger the Alien Enemies Act that requires an invasion by a group funded or supported by a foreign country. So in this case, they have to argue that Trandagua is in fact invading the United States with the support of the Venezuelan government and that that would trigger this emergency power under the Alien Enemies Act.

And what the court said is like, okay, I don't know whether that's triggered or not. You're going to have to go litigate that below. But if you want to do that, totally fine. That is still valid law. But then you are in Article III courts and you have to have due process in those courts. So they have to be able to file a writ of habeas corpus, they have to have the notice in order to be able to file the writ of habeas corpus, and then you get to go in front of an Article III judge and that can take time.

And there's a lot more, you know, ornaments that attach on that due process Christmas tree than in the immigration court Christmas tree. And I think that the court thought that they'd be like, ugh, not worth it back to the INA system. Right. But instead, the administration tried to be cute and say like, yeah, but what if we like don't really give them any time to file this? Let's see what we can get away with, you know, shoving the clothes in the drawer and it doesn't shut all the way. And the court here is

saying, look, I'm not saying you have to fold the clothes, but the drawer needs to be able to shut. So take it all out, try again, let's see what you can figure out. And might I also note that it feels to me, and Sarah maybe I'm reading too much into this, that the court isn't just necessarily impatient with the administration, but also perhaps the Fifth Circuit. And it was very interesting because it says, it basically sends us right back to the Fifth Circuit with a one-two instruction. That is, do the normal preliminary injunction factors do that? And then two,

go work through what notices do. Which, by the way, this should have been done. This should have been done by the time it got to the Supreme Court. And so, it feels to me that what you have here is a bit of a, there is obvious, obvious concern about the administration's actions. And again, speaking of like, we've talked about two lines. Well, let's go to three lines, the birthright citizenship oral argument that we just had. You could hear it in Justice Barrett.

Are you going to support, are you going to, are you going to comply with court precedent? Are you going to respect court precedent? You saw it, remember that whole exchange about the Second Circuit. And then we had Judge Ho, our friend of the pod, Judge Ho, kind of venting back into Supreme Court in an opinion last night, basically saying, wait, are you really saying that district courts should be monitoring what's happening at 12, 30 a.m.? Like, is this what we're doing now? This is not a Denny's.

Yeah, this is not a Denny's, they're not open 24 seven. And okay, on the one hand, Judge Ho, I get that. On the other hand, your anger is misplaced. It is not the Supreme Court that is causing this problem. It is an administration that is thumbing its nose at the Supreme Court and not providing any process that would meet the definition of due process. And so that is why this is happening. It is not happening because the court is saying, well, district courts need to be open 24-7 working around the clock. The administration is pulling a

fast one, and when they're pulling a fast one, you have to be alert to that. So the bad actor here is the administration, not the Supreme Court. The Hot Honey McCrispy is so back at McDonald's. With juicy 100% Canadian-raised seasoned chicken, shredded lettuce, crispy jalapenos, and that completely craveable hot honey sauce, it's a sweet heat repeat you don't want to miss. Get your Hot Honey McCrispy today. Available for a limited time, only at McDonald's. What's better than a well-marbled ribeye sizzling on the barbecue? A well-marbled ribeye sizzling on the barbecue that was carefully selected by an Instacart shopper and delivered to your door.

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FIRE is a nonpartisan organization that defends free speech nationwide with a special focus on college campuses. Through their Faculty Legal Defense Fund, FIRE provides legal help to professors whose rights are threatened. And right now, they're expanding their network of attorneys who are ready to step up to defend faculty. If you're an attorney who cares about protecting open debate,

rigorous scholarship, and the rule of law in higher education, this is your chance to make a difference. Join a national effort to protect the rights that make universities—and our democracy—stronger. Learn more about the Faculty Legal Defense Fund and how you can join at thefire.org slash network. That's thefire.org slash network. Academic freedom is worth fighting for. And it starts with lawyers like you. Also worth remembering, so it gets filed at 1234 a.m. Nobody is really

faulting the district judge for not acting on that by 1 a.m. It's that we get to 3 p.m. So it is true that the Supreme Court was using the time between midnight and 3 p.m. So what is that, 15 hours? And saying that there had been a 14 plus hour time delay. I agree that that's probably not how we should think about it. I would maybe start at 9 a.m. and say there had been a six hour time delay or something like that. And of course the Supreme Court is very used to dealing with this in their death penalty docket, David, as you referenced earlier, those can come in at all hours of the night and there does have to be someone on call to receive those. Now, they know about them in advance or at least that the execution has been scheduled on that day and so they do tend to expect something to come in. But yeah, might be

complaining to the wrong people there. David, back to what you said about the birthright citizenship line as sort of that third bucket of cases that are causing this frustration. You had Kagan ask the question about the Second Circuit. It gets picked up by Barrett. But there was something that we didn't highlight in our conversation about it that I just wanted to underline about that exact exchange. Because we didn't really get to the reason why that was, I think, so important.

It's not just that they're not gonna follow second circuit precedent. If they say, you need to provide notice to Abrego Garcia, what the administration was saying was like, yeah, but we may not apply that to Smith. That each person will have to get their own ruling, potentially. Now he said they would generally follow it.

They usually would follow it, but they wouldn't give a blanket statement. And that's why you have Justice Barrett then saying, I'm not talking about some 1953 precedent you're trying to challenge. I'm saying you have this case right now that says, you know, Abrego Garcia needed the ability to file a writ of habeas corpus. And then for the next guy, you're like, he doesn't need a notice. We'll try again. And so then Kagan jumps in

right after that and says, okay, so let's assume that every circuit court rules against you, but that you don't need to follow that precedent for everyone else who lives in that circuit. And only the Supreme Court can issue a nationwide precedent that you're agreeing you would follow. Why would you seek cert at the Supreme Court? You've lost at every circuit court. You're the only one who can appeal at that point. The winning side can't appeal.

But you're saying you won't abide by that precedent. So you're actually better off if you think you're gonna lose at the Supreme Court. Taking the loss in every circuit, simply not abiding by that precedent, then you are asking the Supreme Court to hear it if you say you will abide by that precedent. And what you saw was Solicitor General Sauer say,

no, no, no, we will apply for cert. And Kagan's like, but why would you? Yeah, right, why would you? This is where that presumption of regularity becomes really important, because Sauer's basically saying, trust me, we would. Can you believe Sauer? Can you take Sauer at his word?

Will Sauer still be the SG? Will this administration stand by what Sauer just represented to the court? All of those are part of that presumption of regularity that the Supreme Court had granted administrations in the past and that they're not granting this administration. Now the other part that you saw in Judge Ho's concurrence about when they sent the AARP case back down was frustration that other presidents got this presumption and this one didn't.

And he basically says this president deserves as much respect as those presidents who also pulled shenanigans, if you will. That's where the fight is right now. And that's where I think you see Justice Thomas in Alito who dissented in the AARP case trying to say, well, look, this doesn't make a ton of sense based on how we've generally looked at these cases. And the unspoken part of this is, David, they don't believe that this administration is acting like past administrations, even when past administrations have tried to do shenanigans,

pull fast ones, that they've done that within the rules of the game in a way that they don't believe this administration is doing, in a way they don't trust this administration would seek the Supreme Court's opinion if they're better off with the losing side in all the circuit courts. Yeah, I think that's very well said. Let me use a very basic analogy.

Imagine that you have two children, they're both unruly and relatively rebellious, and you catch one and you tell him, go to your room, and he goes to his room. Or you go stand in the corner for five minutes, and he goes to his room, or you go stand in the corner for five minutes, and he goes and he stands in the corner for five minutes. You catch the other one and you say, go to your room, and he throws a vase at your head. And so that's kind of the difference. The Supreme Court had issued this go to your room opinion, and what comes whistling back is like this defiance, this really almost trolling of the district court that's trying to get Abrego Garcia back.

And these tweets, this outright defiance, earlier you had, for example, disciplinary action taken against attorneys at the Department of Justice who had made representations that the administration, once they learned about that, didn't like. So, you know, if you're sour and you make a representation to the court and Stephen Miller doesn't like it, you might lose your job. You might lose your job. And so this is a, you know, it's really interesting. There's this double game that a lot of MAGA plays, which is, number

one, the establishment is broken, we need to come in and wreck the place, we need to upend everything, we need to start throwing tables, everything's got to change. And then you say, we're administration not like any other. Then all of a sudden the system responds to you as if you're an administration not like any other. And then they say, why are you treating us differently? And well, maybe because you're intentionally behaving differently. You have broadcast to everyone that this is not a normal administration, that this is

not the normal way of doing business. And then when people are responding to not normal ways of doing business through extraordinary procedures, you act aggrieved. It's weird. It's weird, Sarah. Okay, let's discuss this Libby case. Laurel Libby is a member of the main House of Representatives. She posted on Facebook, I think, for our purposes, something about a track meet, I'm going to say, a high school sports event in which a trans athlete competed against women and the trans athlete beat some women in that sports event. In her Facebook post, she identifies the student athlete by name, the school,

and her feelings about why this was wrong. The main house, the majority, votes to censure her by party line vote. And actually, the main house, for what that's worth, is relatively close in its divide for what that's worth. They vote to censure her, and unless she apologizes for her post, she no longer has voting privileges in the House of Representatives in Maine to which she was elected. So, Representative Libby sues and the district court and the circuit court both hold that this is legislative privilege, that basically the House of Representatives in Maine gets to run their own house, clean their

own house, etc., and that they can't intervene in this. Representative Libby, of course, claiming this is a violation of her First Amendment rights, that she's being punished for her speech, her constituents are losing their vote. The votes that happen while she's not allowed to vote include the vote for the $11 billion budget in Maine. So after having their injunction denied, they go to the Supreme Court. And then we got a ruling off that short order docket with the Supreme Court 7-2 holding that in fact her voting privileges must be restored during the course of this litigation. David, when I first read this, I was like, this is a no-brainer, obviously. You said something unpopular about an issue of public debate, and then they removed your voting privileges.

You were a duly elected member of this body, voting privileges. You were a duly elected member of this body, uh, naw dog." And indeed the seven-two would kind of bear that out. Sotomayor said she would deny the application but didn't write anything else, and Jackson wrote a dissent from the grant of the application. But David, I will tell you, the more I sort of really thought about this, the more I was at least a little bit torn. And I'll tell you why. So, if this, let's pretend this was the U.S. House of Representatives for a second. I know it's not and all that comes with that. So, in the U.S. Constitution, Article 1, it says, each house may determine the rules of its proceedings, punish its members for disorderly

behavior, and with the concurrence of two-thirds, expel a member. So David, I ask you, if the House of Representatives, the U.S. House of Representatives can punish a member for disorderly behavior, A, don't you think that Trump's the First Amendment, that they're both in the Constitution and this one's a more specific provision? And B, don't you think that also is entitled to legislative immunity, i.e. a judge can't then oversee what it means for them to punish their members? I would agree on the US Congress, yes.

Because of the- I just wanna, like, all I wanna do right now is like set up- Yeah, yeah, yeah. If this were the US Congress- Absolutely. This is very explicit in the US Constitution, the US House, the Congress governs its own. Okay, and that's scary, right? Because it means right now Republicans, for instance, control the House of Representatives, they could say that no one has voting privileges in the House

unless they're willing to say MAGA forever on the House floor. Right? I mean, that's kind of what that says. And that not only would you not have some First Amendment right not to be compelled to say MAGA forever, but I don't think you could even go into a court and complain about them forcing you to say MAGA forever. Now, maybe we could quibble about what it means to punish its members. Like maybe punish doesn't mean that you could take away their right to vote. But frankly, there's actually some precedent back in the World War I era of a member of Congress who was a member of the Communist Party. Yeah, and was expelled.

So and that obviously that actually did go to court and the court was like, yep, that's fine with us. Okay, so that's the US House. Now, this gets messy. Because while I don't think the First Amendment applies to the US House because of that clause, it obviously does apply to the states through the 14th Amendment. But let's imagine now for a moment that the main constitution looks the same as the US Constitution. It doesn't, but for our purposes, it's good enough. It actually has something about like endangering children, and that's what they're claiming allows them to punish representative Libby,

that she's not being punished for her opinion. They're like, we have plenty of members who believe the exact same thing she believes about trans participation in sports. She's being punished because she endangered a child by using that child's name in school. And so all we're asking is that she apologize for endangering a child, not take back her views

on this thing. And I think this is a little bit, I think this is very tricky. I'll give you that. For what it's worth, I think I would have voted for the status quo to be that she has voting privileges during this time while it's being litigated. Because to me, it seems pretty obvious that like the harm is so irreparable to be that she has voting privileges during this time while it's being litigated. Because

to me, it seems pretty obvious that the harm is so irreparable when you've elected a member and they're not allowed to vote and that it would have a chilling effect on any future members, regardless of whether she won her lawsuit or not. So the status quo to me is exactly what it should be. She gets her voting rights back as this litigation proceeds. However, I don't know that she wins her case. So I think she wins her case and I think that she wins her case because essentially what you're talking about here is you have the national rule, which is the First Amendment applies, unless there is a federal constitutional carve out. So you cannot have a state constitutional carve out from the federal first amendment. If you're going to have a carve out from the first amendment, it has to be a federal constitutional

carve out. And there is a federal constitutional carve out for the US Congress. There is not a federal constitutional carve out for state legislatures. Now, as a policy matter, you might want to amend to the constitution to grant the same kinds of privileges to state legislatures. But if you're going to be looking at sort of the 14th amendment and the reasons for the 14th amendment, one of the big reasons for the 14th amendment was actions of state legislatures. And so, you know, an idea-

But what about my argument that this was not, she wasn't punished for her speech. Like there was a, sorry, it was speech, that there's no question about that. They were trying to make a speech conduct distinction here. Like I don't buy that for a second, but that it's a neutrally applicable rule on speech, you can endanger children.

It has nothing to do with your views on transports. Yeah, the endangering of children point is vague to the, that would be a classic sort of void for vagueness analysis. What an extremely malleable standard that is. So- Fair enough, okay? Yeah. You don't buy into that one.

What about this legislative immunity idea that courts, regardless of the first amendment, So, no, I- Fair enough. Okay. Yeah. You don't buy into that one. What about this legislative immunity idea that courts, regardless of the First Amendment, courts shouldn't be in the business of policing actions within the House of the legislature and how they decide, like, what if they had just barred her from a committee? Is the judiciary really going to get in and be like, which committee assignment she should have gotten because they were punishing her because of her speech? Obviously not. Well, the issue is not the severity of the punishment.

The issue is the existence of the punishment for speech. And I feel like if you have- So you actually think that a member could sue because they said something mean about the House speaker and the House speaker then didn't give them the plum committee assignment and gave them the crap committee assignment. You can sue because that's punishing you for your speech?

Oh, I can sue if I say something mean about the administration on a matter of public concern and I'm assigned to a new cubicle, Sarah, under retaliation doctrine. Like I can- But within a state legislature, you don't think there's any judicial immunity or legislative immunity from judicial process for how a state legislature chooses to conduct itself? If the state... Now, the question would then be a matter of sort of, you know, what kind of remedy would attach, what kind of damages would exist.

And I would say the damages might be non-existent in certain circumstances. But this idea that the legislature is going to enjoy a zone of immunity, the state legislature is going to enjoy a zone of immunity from the U.S. Constitution and the conduct of its internal affairs, when the 14th Amendment was enacted in large part to prevent Affairs when the 14th Amendment was enacted in large part to prevent state legislative abuse. Because think of it this way, Sarah, if you could say, well, we're going to bar you from voting on the basis of your speech, which I think is a ridiculous standard if the US House were to adopt it, even though the US House is allowed to, I think by a overly broad provision of the

US Constitution. But if you're going to have that kind of standard, my question would be what would stop the legislature of Mississippi from expelling all its black members? I mean, so it just strikes me as very difficult to square with the 14th Amendment. Indeed, from an originalism standpoint, if nothing else. Yeah, yeah, yeah. Okay, well, look, we've held off getting to the real meat treat. Do you know what burnt ends are, David? Of course, burnt ends are meat candy.

It's like meat candy. Yeah, it's incredible. So we told Nate that this was treat meat and now he really likes it and asked for the treat meat each time. He's a very sensible young man. We need to get to the treat meat of this podcast for sure, which is Professor Bode. But before we do, I just had two quick notes. One, two weeks ago, I don't actually even know, but one listener said they thought I might have mixed up the colors of the briefs on when I was explaining the colors, which would be really bad, right? That I'm literally there

to explain the colors and I get the colors wrong. So I just want to try it one more time because the other piece of this that's perhaps worth explaining is that in like common Supreme Court practice parlance you'll often just say the top brief, meaning the brief of the petitioners, the ones that are asking the court to overturn something, but the top brief is blue, the bottom brief is red. I don't know what I said, but that's actually accurate. Next, another fun semantics note. David, we don't do Latin conjugation on this podcast, but if we did, I would want it to look something like

descent, descental, disgrantle. And we've never talked about disgruntles before, but we've talked about dissent and dissentals, right? Dissents, you all know. If a judge or justice disagrees with the majority, they can write a dissent. This was not always the case, by the way. It's actually like really the last hundred years since 1925 that the court, justices on the court have been writing dissents. Before that, they had too much on their plate because they couldn't choose their own caseload. So dissents, about a hundred years old. Dissentals. This is when a circuit court is deciding whether to take a case en banc, meaning all the judges on the circuit court will sit together, unless you're the Ninth Circuit and then I know you have too many, you don't actually all sit together, but whatever.

And they deny it. So it's a descent from denial and you squeeze those together for descental. Now I'm going to spell this for you because it's going to be relevant. D-I-S-S-E-N-T-A-L. Descental, A-L at the end. Now a disgruntle is the opposite. It's a descent from the grant of an en banc review. The ul at the end doesn't make any sense.

It's not a portmanteau anymore. But nevertheless, it has been dubbed a disgrantle, D-I-S-G-R-A-N-T-L-E. So it's not even spelled the same. And for some reason, if you're a native English speaker, you would already have known that dissental would be A-L, but disgruntle would be L-E. I don't know why. I find it fascinating. But it is worth noting, David, that I had never seen the term disgruntle actually used officially. Now, maybe I just missed it. I will fully acknowledge that possibility. But we now have in citation the Ninth Circuit Judge Lawrence Van Dyke using the term disgruntle, referring to his own disgruntles for what that's worth. So I thought I would go ahead and explain it to everyone now that it's gonna be a term that you're gonna see in,

I mean, common parlance may be going too far. Maybe it's not gonna come up at your kids soccer game tonight, but it could, and I didn't want another day to go by without you all knowing the term disgrantle. I love that term so much because it communicates emotion as well. It does, it's almost onomatopoeic emotionally. What you granted that I am disgruntled, you know,

it's like, it's that cousin to disgruntled. Now here's a question that I have, you know, use the term disgruntled a lot. We had a friend who used to use the term disgruntled all the time to the point where we would then flip around and say, what can we do to gruntle you if you're so disgruntled? Why is the word gruntle not the answer to disgruntled? So, you know, my kids, the kids are disgruntled.

Right. Yeah, the kids are disgruntled. What's our gruntling plan? Yeah. Yeah, I don't have a good answer for you, David, but you know what? Will Bode should have the answer to all of our questions, and he is coming up next on the podcast. This is like gonna be the best conversation on the origin of originalism, the lost history of originalism,

that it was maybe actually first pioneered by an FDR administration official and liberal. Let's hear more. Professor Bode, thanks for joining us. BODE Thanks for having me back. LESLIE And just so people get a verbal sense of the visual I'm seeing. You're at the University of Chicago, obviously. Your office is in the library. CB. Yes. All of our offices ring the law library. LS. And behind you looks like you have your own personal library that's been poorly managed. The books are all which ways, stacked to the ceiling, and even on your desk. What is that

monstrosity that looks like a murder weapon? That would be Webster's second international dictionary, Justice Scalia's favorite dictionary from before the dictionaries went woke. This is the literally problem, right? That dictionaries at some point start saying that literally can also be used to mean figuratively and we don't want those dictionaries. Right. You know, it is tricky because words are based on usage, but just as quickly, I

thought the whole point of a dictionary was to tell you something, you know, more authoritative than what you knew yourself. So in honor of him, I have his dictionary. I mean, not his, but you know. I don't know that I agree because words are solely based on usage. So like the word man, for instance, used to be a generic term that included women. Yes. Like we have the word women, it comes after the word man historically.

So like anytime you're picking a dictionary, you're picking a moment in time of what that usage was. Yes, and so part of the reason of course you want dictionaries that are older is also to get word usage at different times. So you can't quite see it, but I also have Webster's 1828 dictionary, the first American usage dictionary, which is a nice thing to go to for you know, early founding understandings. So I'm a I'm a pluralist. Definitely a law professor. Okay, you've come on today's podcast for a very specific reason

you were teaching a class this semester that David and I were hyper into. I'll be honest, we talked about doing this like back in February or something. I've completely forgotten what we're talking about. And so you're going to have to introduce like a student who shows up to your class. I asked you for reading. You didn't send me the readings that I needed to complete before this class. So professor, take it away. Well, the readings are out of print. And I just finished the class. So I just finished teaching a class about William Winslow Croskey, who was once the most famous constitutional law professor in America. He was an originalist law professor at the University of Chicago.

In 1953, he published a book called Politics and the Constitution in the History of the United States, which was basically 1100 pages on how the Supreme Court had for centuries lost sight of the Constitution's original meaning. All law professors had lost sight of it, and it was his job, William Krosky, to recover it. By first, he said, first we have to construct a founding era dictionary. We have to go back and read all the original sources and understand what the words mean because we've lost sight of it. And then we have to get inside the sort of founding era political thought. And we understand their thought and their words will recover all of the lost meaning of the Constitution. And then it goes through basically the whole

Constitution at great length and with great disdain for everybody who's ever come before him except for George Washington to figure out everything we've lost. But this goes, this is not part of our story of the legal conservative movement whatsoever. before him, except for George Washington, to figure out everything we've lost. This is not part of our story of the legal conservative movement whatsoever. That story starts, you know, there's the Warren court, then the backlash to the Warren court in the late 70s. You can, you know, pick exactly who you're citing, but generally you're going to be looking at Robert Bork in like 78. Then we get to Meese's, attorney general Meese's big speech in 85. And that's going to lay out the big moment for originalism. Scalia joins the court and

we're off to the races. That's the quick version of the legal conservative narrative. What the hell are you talking about with 1953? This is part of how I got into this. I mean, Krosky was a constitutional officer at the University of Chicago. So obviously I have professional interest and by all accounts, his office looked even crazier than mine. So hopefully I've got some space to go. But I go to so many conferences and hear so many things about how conservatives invented originalism and Robert Bork developed it for these reasons. And then I say, what about Krosky? And they say, who? And then here we are. So here are just two quick facts about Krosky

that really helped me come to the end. So one is he was a New Deal liberal. Like he worked in the administration during the New Deal. He started teaching in 1937 and he came to constitutional law because he was convinced that something had gone wrong with the Supreme Court's incredibly narrow interpretations of Congress's commerce power. That's where he came from. So he was the opposite of Robert Bork. He was also Robert

Bork's constitutional law professor. Robert Bork, I think he was from Chicago, took constitutional law from William Kravsky. So even the idea that Bork invented originalism is not right. Bork took his liberal professor's theory and followed the theory, but argued it led to different conclusions from his professor, which is sort of a different story. So he's a liberal originalist, maybe like the Akhil Amar of the 1950s, I suppose. This is a liberal originalist.

And how different is his originalism from the originalism that we grew up with? Well, that's part of what's interesting. So parts of it are totally wacky. And parts of it are things that they thought were totally wacky at the time that now are like a big yawn. Okay, so what's totally wacky and then what did you think was wacky but is not? Yeah, so his core theory, like the theory that animates the book and that is wacky,

is he does not think that the federal government is limited to its enumerated powers. He thinks mostly that the commerce power is insanely broad because commerce among the several states actually means any human activity that takes place anywhere in the country. I'm. In part this is based on a several hundred page exploration of the meaning of the word among. How about doesn't actually mean that's across states. But like there was a letter about there was a hurricane among these various islands and the point was that the hurricane was just in the islands it wasn't only that was crossing from island to island. Or you can talk about something so he that like the commerce among the several states just means commerce that takes place anywhere in the states. And it goes on and on. So like that's his nationalism. That's his New Deal self coming out. And this leads to lots of other things like

views about the import export clause and the contracts clause and how it intersects with the ex post facto clause and the preamble executive it intersects with the ex post facto clause and the preamble executive power and tons of other things. What's weird though is that a lot of those other things have now become conventional wisdom. So justice Thomas doesn't think the Dormer commerce clause is the thing. Krosky did not think the Dormer commerce clause was a thing. Just as Thomas said, but what do we do instead? Ah, it's actually the import export clause that bans the state taxation against out of state stuff. Where does he get that idea? Krosky. Thomas has like pages and pages of his famous Dormit Commerce Clause opinion

relying on Krosky's views of the import export clause, even though Thomas is not on board for the rest. Just two other quick hits. These are my favorites. So Krosky's most controversial view at the time was that the Bill of Rights is incorporated against the states and so he was heavily relied upon by Hugo Black and other people and that you know all the all the normal people at the time thought this was crazy and so there were other law professors you know taking him on but Krosky was the leading academic proponent for what is now like settled doctrine right at McDonald versus City of Chicago and Krosky thought it was the the privileges immunity clause, he had explanations of why. Again, that was like

at the time he was insane. Now he's just right. The thing he thought that got in the most hot water was he was convinced that James Madison fraudulently altered his records of the constitutional convention to smuggle in Madison's own preferred reading of the constitution in various ways. And almost everything we know about the convention comes from Madison's own preferred reading of the Constitution in various ways. And almost everything we know about the convention comes from Madison's notes, because he was the only person who realized he should take notes on the whole conspiracy. And so we rely heavily on him.

So he got these savage reviews at the time, from the editor of the Madison papers, from Madison's chief biographer, who accused him of impugning the integrity of a great man and so on. And that's probably one of the things that ultimately made him seem like a laughing stock. Well, like five, seven years ago, a law professor named Mary Builder won like a major historical prize

for a book called Madison's Hand, whose thesis is James Madison, in fact, altered his records at the Constitutional Convention much more than we realized and for substantive reasons because he was writing them for Thomas Jefferson and wanted to alter the narrative to fit what actually happened. So I feel like William Krosky kind of deserves an apology. And this podcast is all he's going to get? Poor man. Well, he's been dead a while. Well, he also got a class, Sarah, he's he got a class at

Chicago and he's getting this podcast. So you got to start somewhere. It's like a small pebble rolling downhill until you get this sort of congressional resolution of apology Yeah, he got he got 22 very smart Chicago students to read his book and to argue about what he was right about what he was Wrong about um When I made this podcast, I might write a paper about it I should think so right now his book is out of print. It's published by the University of Chicago Press. And even just I've been buying used copies on Amazon every

time I see them because I was trying to corner enough copies to even just supply the students. I've been trying to get the press to bring it back in print, but they've been having trouble even finding the files. Now, I will say also in in defense of the people who call them crazy, often when Krosky was right, he was still kind of off. So like the things Krosky thought Madison had altered might not be the things Madison had actually altered. So Krosky might still be wrong about things, but the idea that he shouldn't have been impugning James Madison's character or there was crazy to think that this documentary record couldn't

be trusted. He's right about that. Can we go back to privileges and immunities clause? Because we, moderns, have largely written that out of our constitution. In Krosky's time, it would have been already written out of the constitution. What was his view, his originalist view of what the privileges and immunities clause was supposed to do? I mean, his view was that the privilege immunities clause was supposed to complete the reversal of Dred Scott, right?

So before the civil war, the Supreme court had held in Dred Scott that, uh, black people couldn't be citizens. And that one of the reasons they couldn't be citizens was because if they were citizens, they would have rights. And she just as Tony thought that was unthinkable. They can't have rights. therefore they must not be citizens. And everybody knows that the first sentence of the 14th Amendment, whatever else it does, reverses Dred Scott. It says that all persons born here and subject to jurisdiction thereof are citizens. So that

reverses the holding that you can't be a citizen. But the second sentence that states can't abridge your privileges or immunities, Krosk thought was making sure we completed the syllogism and said, because they're citizens, they're going to have rights. And they're going to have a range of rights, including the Bill of Rights enumerated in the Constitution, which people like John Bingham thought were really important. And so it protects the Bill of Rights that were previously not protected. So he would say that the privileges or

immunities clause is the incorporation. Exactly. So I'm sorry, we're about to get a million pieces of mail because I get privileges or immunities, privileges, and immunities between the 5th and 14th. I always get it wrong, but you know what I mean. Yeah. Article 4 in the original Constitution said that each state has to recognize the privileges and immunities of citizens in other states. The 14th amendment says that

no state can deny the privileges or immunities of citizens in their own state. The reason it switches from and or is just because it switches from a positive to a negative. Article four is like you have to give them, so it's and. And then the 14th amendment is you can't deny them. So when you add a not, it turns into an or. Oh, that's going to actually help me remember it because I know that the 14th amendment is the deny one. Yeah, so it's the or. Okay, thank you.

So, does he explore it all? So one of the interesting elements of the 14th amendment is that the privileges or immunities clause applies to citizens, but the due process clause applies to persons. And that's the mechanism through which we have incorporated the Bill of Rights is the due process clause, which applies to persons. So under his reading, would the First Amendment, for example, not be incorporated as to green card holders, say, under a privileges or immunities analysis? Is it only that due process analysis that protects? I mean, obviously persons is in the fifth amendment, but if a state or local government denied to say a

green card holder their due process rights or their free speech rights under privileges or immunity is tough, right? I think that's right. Now, sometimes some people think and Krosky didn't spend as much time on equal protection, but some people think, and Krosky didn't spend as much time on equal protection, but some people think that maybe the equal protection clause then sort of indirectly extends some of these protections because when a state discriminates against an alien by treating them differently from a citizen, we could ask whether that's permissible. But of course, citizenship is the fount of rights. It's not crazy to think you can treat

citizens and non-citizens. What did the, like, what did FDR think of this? This is his former advisor, right? And like he's trying to provide this backstop to FDR's frustration with the Supreme court. It reminds me a little bit of the Frankfurter situation where Frankfurter is a judicial minimalist when his team's in power, you know?

And judicial minimalism always becomes really popular like it is right now among conservatives. Judicial humility, judicial minimalism, this idea that the judicial branches should defer the elected branches is really popular with the team that's in power, I have tended to notice through history. Frankfurter is like an OG minimalist, and then he goes really out of fashion, even still within FDR's time, over like the First Amendment.

Yeah. So I don't know what FDR specifically thought. I think Krosky did have this misfortune of having a really bad timing, in that he comes to Chicago to start teaching in 1937, just as the Supreme Court is starting to do the switch in time that saved nine, as they call it. The court is starting to uphold the New Deal rather than strike down the New Deal. So by the time Krosky starts writing, a lot of the things

he's writing about are less urgent. Like now he's just writing to say, yeah, you know, the courts changed their mind, but they were right to change their mind, but I should have changed it earlier and harder. So now when his book eventually comes out in the 50s, because he's like, you know, he's the law professor who just for 15 years publishes nothing. And then it's like, all right, here's the magnum opus, like I'm dropping it on you. When it comes out, it's reviewed in like 75 law journals. Arthur Croc gives it like a multi-column right up in the New York Times. And there is this sort of reaction of like, what a relief. Finally, Professor Krosky has put all the conservatives in their place and shown that like none of them understood the

Constitution and got real constitutional truth here. So there is kind of initially greeted as this like way of a vindication, but frankly by people who just liked the outcomes it reached and maybe hadn't actually done the work themselves. Yeah, I mean, Brown is gonna come out the next year and Brown does not fit with what you're describing this book said. Yeah, speaking of awkward timing. Uh-huh.

So what is it that a modern originalist can learn from Krosky? What is it that we're missing that he caught? Yeah. So this is definitely one of the themes that my students and I are trying to figure out over the course of the class. I think Krosky's biggest claims that we don't actually have a federal system just don't hold up very well. Maybe those are rejected for a reason. Although some of his points are good enough

that like I think people have to wrestle with them. Like one of his even core points is just we talk a lot about the difference between interstate commerce and in-state commerce as like the dividing line. And Krosky points out that distinction does not exist in the Constitution. The Constitution does not say interstate commerce. You need some inferences to even understand that's what it's doing. I think the, you know, and then he has a lot of individual observations about executive power and eerie. And he's one of these people who like every footnote, he'll just like have a footnote about the definition of insurrection that is eye opening andening and full of sources that most people didn't know about. But I think the biggest thing is sort of what

it teaches us about originalism as a method and originalism as something kind of working towards truth about the Constitution and working itself pure, I guess. That you can see these places where even when Krosky was wrong, he moved the conversation forward. He put a lot of arguments on the table that now people accept it, even as they reject other parts of it. You see how if you focus on the flaws in any one round of the argument, you're often missing the point. I think where we started that just seeing that even in the 20th century,

originalism was not just a right wing plot to like take over the Constitution. Originalism was a method used by people on both sides to try to understand where things had gone wrong and what this magnitude did differently. And of course, that's going to change again, you know, I think is really important to people who might otherwise get lost in the current moment. Professor Boat, I think we have to end it right there. That's the perfect ending. How could we possibly ask for a better one? Thank you so much for coming and teaching us about this. And when you write your law review article, which I hope you will, and you get the Chicago press to

put this back into print, come on back. We'll talk about it more. Man can dream. Well, David, that was a treat. That was a treat. That was a treat. That was a treat. Ended on a great note. It was all the treat meat that we could want. It was indeed. It was the treat meat of a podcast, the burnt ends of a podcast.

I love it. So for our next episode next week, boy, we'll have plenty. The Supreme Court is issuing more opinions this week. Now, as you guys know, for longtime listeners of the pod, when we get into this season, if we get one of the big decisions, we will do an emergency pod to cover that. However, there will be plenty of days where we don't get big decisions and we'll just save them for the next regularly scheduled episode. If we're going to have an emergency pod, I will usually tweet that out and let everyone know that it's coming.

So you can always check my Twitter feed for that. But this is the busy season, right, David? Like, we're fully prepared. Our schedules are cleared. We've been working out and lifting weights and eating kale just for the month that we're about to have, June, every year. Yeah, I'm ready to go back to red meat. I've been slimming down. It's just been like salmon and like sushi. Yeah, time to bulk up. Clinton, extra miles. Yeah. If you want to hear more about habeas corpus and some of that history

and more of my thoughts on the Christy Gnome shenanigans, I'm on the latest remnant with Jonah Goldberg, where we also talk career advice for young people, marriage advice, parenting advice. We basically cover your whole life cycle. We didn't have a lot of advice for the elderly, but we will, I'm sure. And some of it will probably just apply anyway. So we'll see you next week. You