Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 479. I’m Thomas, that’s Andrew. How’re you doing?
Andrew: I am fantastic, but also literally angry with rage. [Laughs]
Thomas: Oh, wow!
Andrew: So, how are you?
Thomas: I am – I mean, my angry with rage is that we’ve had to wait so long to get the thrilling part 2!
Thomas: This is like a real Star Wars situation, you know? You’ve gotta wait years for the sequels.
Thomas: I mean, back when they were good.
Andrew: You’re not kidding.
Thomas: The last one was really bad. Anyway.
Andrew: Oh god, yeah.
Thomas: Anyway, now we’re stirring up crap to good fans every which way, that’s how it works. Hey, Andrew, quick reminder for everybody, I know it’s the day this show is out, but we’ve got our Patreon Q&A, that’s our monthly Q&A where questions are available to patrons only and patrons also get to kind of vote on which questions they like, but everybody gets to come watch on YouTube, on the Opening Arguments YouTube channel, so everybody, that’s tonight as you’re possibly hearing this, that’s Tuesday the 6th at 3 pm Pacific, 6 pm Eastern. Come check us out, it’s so fun on YouTube. The questions are always great, Andrew’s ridiculous basement wall with a hole in it is always fun.
Andrew: Yeah, yeah.
Thomas: And the green screen off to the side that captures a couple pixels of the screen, very useful.
Thomas: Anyway [Laughs] Andrew curses at his dialup modem. It’s fun time for everybody.
Andrew: We do – all of those things are 100% true.
Thomas: [Laughs] One more time, Tuesday the 6th at 3 pm Pacific, 6 pm Eastern, we’ll see you there. But we’ve got to talk about originalism. This is part 2, it’s part 2 of 2 but not really because we could go forever. Part 2 of however many we can get to, essentially.
Thomas: I have leftover questions, I can’t wait to get into it. As a reminder, go back and check out 477 if you haven’t because this is part 2 of that conversation about originalism, so don’t miss that one. If you’re just coming to this one fresh, go back, check out 477, I’ll wait. No, no, you can just pause. Never mind.
Thomas: I don’t have to wait. Ah, technology! Isn’t it amazing? [Laughs] Go do that and now we’ll get to part 2, here we go.
Breakin’ Down the Law – Originalism Part 2
[3:33.8] [Segment Intro]
Thomas: So, Andrew, I have a leftover question, sort of and hopefully this works within what you’re talking about.
Thomas: We talked about the, you know, and it’s hard because we’re dipping a bit into philosophy, but we can’t go too far into that because then we will deconstruct the entire world for nine hours.
Thomas: We have to touch a little bit on it. You set up the whole thing of in that case, the case that sort of involved separation of church and state.
Thomas: And bussing kids, and all that. You said-
Andrew: Everson v. Board of Education, 1947.
Thomas: Thank you. You thought there is a right answer, you’re just not sure if you know it, and I said I don’t think there’s a right answer.
Thomas: Here’s what I want to get at, and maybe this’ll get at the different philosophies. When you say there is a right answer, do you mean that there’s a right answer for what is a better outcome? Or do you mean there’s a right answer for what the founders would have valued more? To state it simply, I’m not sure I’m capturing the case perfectly, but just put it in hypothetical terms. You’re balancing two different things in the Constitution, let’s just say there’s a case, maybe it’s that one, maybe it’s another one, where you’ve got conflicting rights that you’re kind of trying to balance. When you say there is a right answer somewhere in the moral universe of this, that’s the question. Is it right because you think it’s a better outcome, or it’s more just or something; or is it right because the founders would have come to this conclusion, or would have balanced these rights in such a way that “Right A” would be valued slightly more than “Right B” and therefore you have to vote this way? Which is it?
Andrew: [Laughs] It’s neither, but it’s closer to B than it is to A. Okay? It is definitely not A in any way whatsoever.
Andrew: You can be forgiven that, because if you heard the episode of Rationally Speaking with Julia Galef and Professor Baude, that was how the non-originalist side was pictured. In fact, we’re gonna talk about one of the specific quotes-
Thomas: Well, I think it was – sorry to butt in. They did it worse than I’m doing.
Andrew: Yeah yeah yeah.
Thomas: I think you can answer A and still be honestly on okay ground. Because we’re talking about questions where there are two things in conflict. It’s not as though you have the easy “President should be 35” answer. They present – just to clarify, if you haven’t listened to that episode they essentially define it – he defined it as you are originalist if you would do “President is 35;” people who aren’t originalist just change it to whatever they want.
Thomas: Is essentially the strawman they set up.
Andrew: Yeah, we’re gonna walk through some of the specific things that were said.
Thomas: Yeah, wasn’t good.
Andrew: I want to be charitable to everybody.
Andrew: But I feel like Professor Baude is making the rounds, he’s been quoted in newspaper articles, and look, I will never throw rocks from my glass house at a lawyer who’s trying to communicate complex concepts to a non-legal audience, okay? That’s the entire show. I want to be as charitable as possible, but it’s a challenge in this case. Let me go back, let me start by answering your question.
Andrew: When I say there is a right answer, I mean when the judge sits down to write his opinion that all of us in the legal community can look at that opinion and there is some objective standard to which we can compare the opinion that gets written to what the (quote) “right answer” is and judge how close this is to that right answer.
Andrew: I think the metaphor I would like to use, as somebody who has zero knowledge of medicine and human anatomy and that sort of practices, but that would be the human anatomy textbook. There is no one perfect human being who’s organs and, you know, vascular system and whatever, look exactly like it does in the textbook. That’s created as an approximation of billions of people over, you know, since we’ve been doing modern medicine. Nevertheless, that means we have a pretty good idea of what a healthy liver should look like, what a healthy heart should look like. In my view, that is what a healthy application of the 1st Amendment should look like. I’m probably straining this analogy to the breaking point. But suppose that the 1st Amendment said, in relevant part, “Congress shall make no law zorbleaning a gargnacks of religion.”
Andrew: So instead of respecting an establishment of religion, we replaced it with two words that are nonsense.
Andrew: That are writing on a completely clean slate, that none of us have any idea what the hell that means. The non-originalist argument, the non-caricatured, non-stereotype, is still we have to figure out what “zorblean” and “gargnacks” are.
Thomas: [Laughs] Yeah.
Andrew: None of us think that that law could just mean anything, or that provision of the Constitution could mean anything, but the question is what kind of words are “zorblean” and “gargnacks?”
Thomas: [Laughs] It’s just …
Andrew: They’re made up words. Now let’s apply that in the real context. Again, I ended with this example on part 1, so I’ll bring it back up again. The 5th Amendment says that no one shall be deprived of life or liberty without due process of law. It is instantly obvious to anybody, lawyer or nonlawyer, when you read the sentence “you shall not be deprived of life or liberty without due process of law,” that that is a different kind of statement then “you’ve gotta be 35 to be President.”
Andrew: Due process of law involves principles at a high level of abstraction. The difference between originalists and non-originalists has to do with where is that level of abstraction? Is the level of abstraction defined by the conditions then obtaining at the time that the principle was written? Or is the level of abstraction to be understood how that law has operated in practice since its enactment? You might be thinking, well, how could anybody be on that first side of the equation? [Laughs] Am I just straw manning them in reverse?
Thomas: This is so funny, because Professor Baude said “oh, well, you don’t keep the same items.” He said, “The rules stay the same until they’re changed but the items can change,” is a quote I wrote down.
Andrew: Yeah, I wrote the same one down. Please keep going.
Thomas: Yeah. Which starts to sound like well then what’s the line there? What are the items and how much of it are you due? [Laughs]
Thomas: I think [Laughs] at what point are we originalists but we’re changing the items? Or are we non-originalists but we still keep whatever we can take literally, sure, whatever’s clear, sure, but for everything else we need to use principles and we’re actually not originalists?
Andrew: Yup, let me parse that out, because I want to show you the linguistic trickery that Professor Baude is engaged in. Again, I apologize for using the word “trickery,” but I think I’m gonna prove that that’s the case. So, at 25:22 into the Rationally Speaking podcast, Professor Baude defines originalism as, this is word for word, “the idea that when you’re interpreting a law, the meaning of the law is the same thing as when the law was enacted unless something has happened to lawfully change it,” (i.e. gets amended or repealed).
Andrew: And I have said in part 1, that’s like saying the Republican party is the party of freedom, they love freedom. Do you love freedom? Then you’re a Republican. The reason is because it elides over things that are important to originalists and then implies, by virtue of those omissions, that opponents of originalism think the meaning of the law changes and is not fixed over time.
Andrew: I will tell you, other than a tiny, tiny subset – we’ve talked about them on the show. We talked about critical law theorists. There are a handful of judges who think the law has no fixed meaning, but the reason I went through all that philosophy in part 1 is to show you that the average, non-originalist lawyer agrees with that sentiment. First, let me describe the sleight of hand, again I’m gonna go back, quote from Ronald Dworkin. This is page 4 from Freedom’s Law.
Dworkin says, “Conservative politicians try and convince the public that the great constitutional cases turn, not on deep issues of political principle, which they do, but on the simpler question of whether judges should change the constitution by fiat-
Andrew: – or leave it alone. This account of the argument was never accurate.”
Andrew: “The theoretical debate was never about whether judges should interpret the constitution or change it. Almost no one thought the latter, but rather about how it should be interpreted. But conservative politicians exploited the simpler description and they were not effectively answered.” That is the pithiest way that I can describe it.
Andrew: How do actual originalists define the term “when they’re being more honest?” Okay, let’s look and quote them directly. I’m gonna quote Robert Bork and Antonin Scalia.
Andrew: Very, very hard for somebody to argue-
Thomas: This isn’t nut picking, as they say. They are the originalists. You are picking, yeah.
Andrew: Bork is the guy who invented the word “originalism” as far as we can tell.
Andrew: Or, popularized it. He wrote the first major article arguing for the original interpretation of the Constitution in 1971, it was shortened to originalism by a different guy in 1980, but then Bork was its champion until Antonin Scalia got on the Supreme Court. Here’s how Bork defines it on page 5 of The Tempting of America, which was his book published in 1990 after he was rejected from the Supreme Court to say “oh, you guys kicked me off the Supreme Court for being an originalist, but I’m right and you’re all wrong.” It’s his 300 page defense of originalism.
He says, “What does it mean to say that a judge is bound by law? It means that he is bound by the only thing that can be called law; the principles of the text whether constitution or statute, as generally understood at enactment.” Or, here’s Scalia in a 2016 interview with the National Review, as quoted in a hagiography of a law review article that literally calls him the greatest Supreme Court justice in history.
Andrew: [Laughs] I’ll include that for you in the show notes. He says, “Scalia, again, defining his principles, says the duty of the court is to interpret the Constitutional text based upon its original meaning.” Now, if you look at those two definitions, they’re very, very close to what Baude says, but they smuggle in two assumptions that Bode elides over. Assumption number one is that the law, the Constitution means and can only mean the written text and nothing else; and assumption number two, that meaning is fixed in stone as of 1789 or 1791 or whenever it gets written. But neither of those assumptions are ever discussed at any point in time.
As you bring that out, I would say to you okay, the law obviously only means the written part of the word, we would go back to my jaywalking example, and you would say no. The law is also how those written words are practiced by the people who have control over that. That certainly tells us something very, very important about how the people who enacted the statute intended the statute to operate. If we pass a law that says you cannot cross not in a crosswalk and then no tickets are ever issued to anybody walking across an alley in a neighborhood, we can absolutely infer that notwithstanding ambiguity about what “never cross not at a crosswalk,” they didn’t intend for that jaywalking law to apply to alleyways. There’s no other way to figure that out.
Let’s go back, again, we gargnacks our zorbleans. If you don’t know what those words mean, you can look ‘em up in the dictionary, you can ask the people who wrote it what they did, but you can also judge and infer from the way that gets implemented. Again, there are rich and deep and wonderful questions to ask about how a law’s text interplays with the law’s history and those who have interpreted it over time, and we get none of that. Instead what we get is the part you quoted, which is well of course it’s not – and again, this is word for word – “Of course, it’s not the same like items.”
Andrew: This was the first moment in which I was like “well, you know, items isn’t really a term of judicial art.” [Laughs]
Andrew: You might ask yourself, why do items get to evolve over time-
Andrew: -but no other aspect of the law? There is zero discussion or justification of that assumption. Here’s what it is, he says “of course not like the same items,” really in that kind of an offhanded way because he’s trying to head off the argument that says oh-
Andrew: The 2nd Amendment means muskets.
Andrew: And he’s like, guns don’t just mean guns, it means any kind of gun, but there are two problems. The first is if you are an originalist, as far as I can tell the 2nd Amendment does mean muskets.
Andrew: Antonin Scalia, and again-
Thomas: Well, it says “arms.” I guess at the time, you have to go with what it meant at the time.
Andrew: Yeah. What did it mean at the time? That’s absolutely right. Again, we know this by – we’ve talked about this on the show, but by analogy to something Antonin Scalia actually – now, he wouldn’t have said this about the 2nd Amendment because Antonin Scalia, like every conservative originalist, is not a principled originalist, although he is perhaps more than most, but a conservative political activist. Conservative political activism was also tied up in revisionist history over the 2nd Amendment, so he would not have applied this same-
Andrew: -this exact same logic that he used with the 8th Amendment to the 2nd.
Thomas: Cruel and unusual punishment, is what I keep thinking of over and over. Is that the example you’re thinking of?
Andrew: That is the example.
Andrew: In fact, he told Nina Totenberg in a 2008 interview, I will include the link in the show notes, it’s recollected in a Huffington Post article, I think the original has been taken down by NPR, I have tried to find it.
Andrew: There are archives, this is a fact. I remember listening to this interview.
Andrew: And there are archives that recollect the fact. Nina Totenberg said, “Well, if the words mean what they meant at the time they were enacted, what you’re saying is only punishments that were deemed cruel and unusual in 1791 could possibly be cruel and unusual today.” Public flogging, breaking on the wheel, can we bring back the stocks? And Antonin Scalia said (quote) “I would say that” (meaning bringing back the stocks) “may be very stupid, but it is not unconstitutional if indeed it was a punishment that was, at that time, accepted.” I don’t say – that is not like the same items. [Laughs]
Thomas: Yeah, that means the items don’t change, the items stay the same. Unless you’re talking about guns then all of a sudden they do.
Andrew: And we also know it on the other half because you don’t just get a free pass on the technology as time passes. Let’s think about the 1st Amendment. The 1st Amendment protecting free speech and of the press, and we know what “press” meant in 1791. It meant newspapers and books. When the press became television in the 20th Century we didn’t just say “oh, yeah, well this is a new kind of visual talky kind of book thing, and all of the laws apply the same way.” No! Our legal system said, well, TV is actually different than newspapers. There are high barriers to entry. Anybody can print a newspaper but not everybody can start a TV station, there’s only a limited amount of bandwidth.
Andrew: Therefore, we can censor – the government can pass laws that say you may not say, you know, the F-word on network television in the same way if they passed a law that said you can’t say the F-word in a book, that would obviously violate the 1st Amendment. There is no way – I would love to have a discussion with Professor Baude on why television doesn’t get the “like items” stuff that upgrades from technology, but guns do. The only way to make sense of this is the articulation that I’ve set forth, that is you take the principles that the particular Constitutional provisions are meant to embody, and you say “how do we best apply those principles in light of changing circumstances?”
Andrew: Are there materially relevant differences? Well look, the fact that anybody could pick up a book and put it down, the fact that anybody could write a book, probably is – I don’t know if it’s enough to justify the entire range of jurisprudence, but that’s probably a little different than leaving the TV on at 5 in the afternoon. I am comfortable with there being some level of distinction there, but that’s because I’m not pretending as though I have the answer to what Alexander Hamilton would have said about televisions. I don’t, and I know that I don’t, and that goes back to the epistopic – go ahead.
Thomas: This makes so much more sense to me as a system of jurisprudence, what you’re laying out, because just thinking purely theoretically, here, in order for originalism to work even with – let’s grant Baude, let’s say he would say well Scalia’s cruel and unusual is just the dumbest thing ever, he would acknowledge [Laughs] Scalia messed that up.
Thomas: Let’s say he keeps his the (quote, unquote) “items” update thing. Is that something you still see could be a valid position to take? You’re originalist, but you still can update the items? Or not?
Andrew: Yeah, maybe.
Andrew: But at that point I think the entire fabric starts to unravel because-
Thomas: But I wanted to point out was-
Andrew: Yeah, go ahead, go ahead.
Thomas: It would require such a theoretical framework, it would require you to assume the Constitution settles all questions, it just leave the proper nouns out?
Andrew: [Laughs] Yeah!
Thomas: You know, oh, when there’s a new thing, a new technology, it will perfectly fit into the spot where, at the time, it was the printing press. You know? It doesn’t allow for the fact that new things, new (quote, unquote) “items” will come into existence that aren’t like the old items and don’t easily fit into a given category, as you say with TV and internet and all these things. I guess it would require you to say well, every time that happens we will have to amend the Constitution? Make it work?
Andrew: And that would turn the Constitution into all of the unworkable documents-
Andrew: -that are on the dustbin of history.
Andrew: The reason for the Constitution’s enduring strength – and this is not a new criticism of originalism.
Andrew: It is the internal incoherence, is that the founding fathers knew they were enshrining principles rather than a specific set of rules.
Andrew: And that the rules they enshrined, by the way, have turned out to be the least interesting, least enduring, aspect of the Constitution, like the 3rd Amendment and the “you must be 35.”
Andrew: Those are precisely the things we could most do without today.
Thomas: Yeah, and the timing of the lame duck period and all this other-
Thomas: The stupid electoral college. God.
Andrew: [Laughs] Exactly. Unfortunately, I think Professor Baude has foreclosed on that possibility from his world view-
Andrew: -because he says, Julia then asks okay, and he does a little bit of the difference between the original intent versus the original public meaning, and there are different flavors of originalism.
Andrew: I’ve tried to do justice to them in this. He says “I like a simpler one, I just want to be whatever the original law was.”
Thomas: Whatever the original law was.
Thomas: I wrote that same thing down.
Thomas: It just sounds so simple to me. It sounds so, like, obviously if it were that easy you wouldn’t have Supreme Court cases. You know?
Andrew: [Sighs] So let’s-
Thomas: Isn’t he acting like every single one is “the President has to be 35” and that the other side is like “no, we can make that mean whatever.”
Andrew: I feel that way. I wanted to steelman this position.
Andrew: The best that I could – steel-bot this position.
Andrew: The best I could come up with was a court today should rule-
Andrew: -that a court would have ruled at the time that it was enacted-
Thomas: Yeah, but how would you-
Andrew: -had they faced that issue.
Thomas: [Laughs] How would you figure that out? Alright, I’m gonna tell one of these old timey judges-
Andrew: Let me give you an example-
Thomas: -about the internet and then their brain will just melt. They’re not gonna-
Andrew: Well, I can think of one – I agree there are lots of ways in which it wouldn’t work. The ways in which it would work I think most people would find morally repugnant.
Thomas: Ooh, okay.
Andrew: Let me give you the classic example. Again, this is just the Robert Bork playbook from 1987. I am not saying anything that any originalist would find as new, it’s just this case is not made in public because they have a bumper sticker and we have, you know, what takes an hour on a podcast.
Thomas: Yeah, yeah. Exactly.
Andrew: Our position is more nuanced, it’s harder to understand. It is the single most celebrated Supreme Court case in American history, Brown v. Board of Education. Plessy v. Ferguson said the 14th Amendment does not require you to segregate schools or anything else, that separate can be equal, and that that is a legitimate interpretation of the 14th Amendment.
Thomas: Well you said “require you to segregate schools,” did you mean the opposite?
Andrew: Uh, require you to integrate, yes, thank.
Andrew: And we know with ironclad certainty how the Congress that voted for and ratified the 14th Amendment, what they would have thought about integrating public schools. The reason we know this is because DC did not have any home rule in the 19th Century. The 19th Century Congress that ratified the 14th Amendment also was in charge of governing the District of Columbia, and in particular, of authorizing and administering the District of Columbia’s segregated public school system. Okay? That is a matter of institutional black and white fact. They voted in a budget and an administration that segregated Black kids from white kids in the District of Columbia. So, we know what the people who voted for the 14th Amendment thought, they thought, as it applied to that particular circumstance, that it would not prevent you from segregating kids on the basis of race in public schools.
So, you have two options then in looking at 1954. If you are a non-originalist you can say, well, it seems to me, again applying the principle of epistemic modesty, that the people who thought the proper way to apply the principle of equality enshrined in the 14th Amendment to the public schools got it wrong on the heels of the Civil War, they weren’t thinking about it, they didn’t realize that it would result in the ghettoization of millions of American kids, and that it would produce grossly unequal school bodies, and it’s time for us to say yeah, that’s been a disaster and own up to it and say the principle enshrined in the 14th Amendment that we all agree on, equal protection of the laws, applies in a way that was different than the people who passed it thought would happen.
Or, if you are an originalist, I guess you can bite the bullet and say that Brown was wrongly decided, but justified on consequentialist grounds; which, by the way is essentially, he weasels about it a little bit, but it’s essentially what Robert Bork said up until the day he died. He said look, I believe my position was not represented charitably at my judicial hearings, I have come to understand that integration has done more for society than I anticipated.
You can say that, but what you can’t say as an originalist is what I say, which is that Brown v. Board was not just a good outcome. It was not just good for American society, but that it was in fact a masterpiece of American jurisprudence. That it was how our Constitution is supposed to work, how it was designed to work from the very, very beginning, and in fact, Brown v. Board of Education represents a middle point. It is not the vanguard of integration. It is not a complete overhauling of society, it is the middle point between “nope, sorry, the people who passed the 14th Amendment were still implicit racists and never would have expected that this meant that Black kids and white kids would go to school together, so you’re just stuck until-
Thomas: Yeah, you have to amend the Constitution.
Andrew: Yeah, right. Or, the far other end which is “well, nothing means anything.” Ope! We have new morals so time to change the Constitution to mean whatever we say it does. My view, and this is why – again, I’m no genius about this. I’m repeating stuff hundreds, thousands of people have said before me, the reason why it’s the overwhelming position is because it gives you satisfactory answers in these kinds of cases.
Andrew: After that, we get – I’ll be curious if you have this same note. Julia says “well, you’re making a very persuasive case for originalism, and I kind of wonder, what’s the alternative?”
Andrew: And we get (quote) “Somebody later gets to change the meaning-
Andrew: -based on what someone later thinks is a better meaning.” Then Julia asks, “well how do they pick?”
Andrew: Then he says “well, they draw on precedent, practice, and new moral insights.” And Julia says, “so Justices who explicitly choose a different meaning than what they know is intended, do they justify that as being within the scope of their job? Because that sounds like policymaking to me.” And it should, because that’s not how anyone does it.
Thomas: Yeah. [Laughs]
Andrew: That absolutely is policy making! To choose a different meaning than what you knew was intended.
Thomas: I just kept waiting for, like, what’s gonna be the example of when a judge just changed the meaning and said, like, “well I just think they should’ve meant this.” I don’t-
Andrew: Well, I’m glad you asked that because here is where we get the one case to which they refer, which is – Julia says, “well, why don’t we talk about a case.”
Andrew: I hear Roe v. Wade is not well thought of by originalists.
Andrew: Now, let’s see if you’ll walk into this rake again.
Thomas: Oh, sure.
Andrew: If, based on everything that you’ve heard from William Baude about what non-originalist judges are, I would think you would expect Roe v. Wade to say, the opinion, to say “hey, we’ve come a long way baby from 1791, it’s the sexual revolution, things have changed, we think society’ll be way better off by not banning abortion, so, uhhh, we’re getting’ rid of all the abortion laws.” It will not surprise you that you will not find that reasoning anywhere.
Thomas: But at the same time – I agree, but again, steel-lawyering-
Thomas: I do – I have been struck by, when I’ve heard some other deep dives on Roe v. Wade, it does feel sometimes like a thing was kinda constructed that didn’t exist before out of those rights, and don’t get me wrong, I’m all for it-
Thomas: But it has felt a little interesting in that way. The penumbra of rights.
Andrew: Let’s walk through what Roe v. Wade actually says. The analytical section is pretty short and pretty easy to understand.
Andrew: This is page – if you’re following in the US – Roe v. Wade is 410 U.S. 113, and this starts at page 152. First, the majority dispenses with the bad originalist argument. They say, “The Constitution does not explicitly mention any right of privacy.” So, yeah, right, never says anywhere in there, and by the way, the Supreme Court by “privacy” means the right to make private, personal decisions.
Andrew: About marriage, contraception, pregnancy. The intensely personal decisions that we think of as sort of being at the core of liberty. It’s not quite privacy in the, like, “don’t peek through my window” sense.
Thomas: Oh, okay.
Andrew: But they say, “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford … (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” Then we read what those are in context. It says, “In varying contexts, the Court [has] found at least the roots of that right in the First Amendment, Stanley v. Georgia; in the Fourth and Fifth Amendments, Terry v. Ohio” (Terry, you might recall, is the stop and frisk case).
Andrew: “Katz v. United States,” (and here’s the phrase that is parodied.) “in the penumbras of the Bill of Rights,” (and the citation is to Griswold v. Connecticut, put a pin in that) “in the Ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.”
I was about to summarize, but actually the Supreme Court does a great job of summarizing for itself here. It says, “These decisions” (so, 1891, 1923, 1968, 1969) “make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage,” (the citation is to Loving v. Virginia).
Andrew: That struck down Virginia’s law preventing interracial marriage.
Thomas: Side note, could you have possibly done that on originalist grounds?
Andrew: You could not! You absolutely could not. You must say, if you are an originalist, you must say States are free to ban interracial marriage.
Andrew: Show me where in the Constitution it says you have a right to marry whomever you want. That’s the argument. Let’s pull that pin out, since you asked about miscegenation, Griswold v. Connecticut was about a Connecticut law that forbade the sale of contraceptives to unmarried persons-
Thomas: Right, unless you’re married, right?
Andrew: Yup, exactly right. So, the State was like, “pfft, we’re not gonna let unmarried people do the deed.”
Andrew: And you must, you absolutely must – you can say “where does it say the right to abortion? Well the same place it says you have a right to get contraception, and if you think the United States is the kind of country in which it is permissible for States to say “you may not buy contraceptives,” that’s a very different view of America-
Andrew: -than I think most people have. And when you would say “well, where do you come up with that?” I think the average person would be like “it’s a free country.”
Thomas: Right, yeah.
Andrew: Look, the Supreme Court has said kind of the lawyer version-
Andrew: -of “it’s a free country.”
Andrew: Yeah, does it say it anywhere? No. But we have the 1st Amendment for free speech; we have the 4th Amendment that allows you to be safe in your home; we have the 5th Amendment that provides you due process of law; we have the Equal Protection Clause of the 14th Amendment. We have the general penumbra of the Bill of Rights. That doesn’t seem so silly, now, does it? It’s saying you read all of this stuff in context, and our founding fathers clearly envisioned a society in which people would be free to make basic personal decisions.
Andrew: The idea that the States could come along and intrude on your bedroom would be ineffable.
Thomas: I think that-
Andrew: That’s the argument the majority in Roe v. Wade is making.
Thomas: I think you’re-
Andrew: Not me.
Thomas: I absolutely love that, that was amazing. I think that what happens, because I know some of these people, conservatives. I think they’re taking the bargain, and they’re kind of saying – well, it’s sort of like libertarianism where it’s “oh, well, you know, we would have ways that they would deal with such and such thing.” They want to say, “well, you’d have to make an amendment that would do this,” “oh, you’d have to make an amendment that would do that.” Or, it’s like, well, States are gonna be free to ban contraception and then you just move from that State. I think you can construct a perhaps consistent view that would account for a lot of these things, where you’re like “well, of course you should be able to marry whoever and not have a State be allowed to say you can’t marry someone of another race.” They would say “well, of course we would come up with a Constitutional amendment on that.” But from my taste that all relies on a supermajority of States and however the heck amendments happen, which they just don’t. That relies on massive majorities of people acting which takes time and years and effort and all that to fix all these things ahead of time in time to not leave behind a bunch of people who are gonna be discriminated against in the meantime. It just strikes me as such an ass-backwards way to try to do it, and I think conservatives, because they don’t often like how far we’ve come morally on certain things, and they would say the sexual freedoms we have and all these different things, they kinda want to take that bargain and just be like yeah, no, that’s how it’s supposed to work, and that way they can have a Handmaid’s Tale State, or several of them.
Andrew: I think that description is exactly right. Again, we are – I feel like we are doing our very best to steel-bot here. [Laughs]
Thomas: I’m not, in that instance I’m coming up with what I’ve experienced, taken to be kind of the gambit they’re playing.
Thomas: I freely admit I don’t know if this applies to Baude, for example, but when I’ve argued with conservatives-
Andrew: Yeah, no no no no. I did not mean to attribute that to him.
Thomas: Right, I just want to clarify, yeah.
Andrew: But I think you do have the horns of a dilemma here, and – so, yeah, ultimately what Roe v. Wade said was look, we have clearly recognized a right to privacy in our court decisions stretching back a century. That right to privacy is read from the text of the Bill of Rights in various places, and it stands for the idea that there are certain core, basic, personal decisions in which government should not intrude. So, Mr. Originalist, you have to choose between the horns of this dilemma.
You can go the Robert Bork route, you can say, right, Griswold was a mistake, too.
Andrew: There’s no right to privacy, there’s no such thing as a goddamn penumbra, if it’s not in the text it doesn’t matter, and how dare you read stuff in context? Even though, of course, that’s how we read things. But you can take that approach, and I’m gonna explain that in a second. But what you can’t do is what every originalist on the Supreme Court right now has done, either by deliberately lying or by lies of omission in their confirmation hearings, which is to say “I recognize Griswold as settled law, but I have no opinion about Roe v. Wade.”
Andrew: That’s what Clarence Thomas said in 1990, and that is, to varying degrees, what every originalist appointed since Clarence Thomas has professed in their confirmation hearings. Roe v. Wade, I just read it to you! It is not crafted out of whole cloth, it sits on top of a history of particularized rights that derive from the text of the Constitution as applied over time. Now, what if Baude decides he’s going to go the Bork route? The okay, well, I’m just saying all that privacy stuff seems made up, too, so yeah, States can ban contraceptives and States can ban interracial marriage and it’s just too bad.
Here’s how Dworkin put it on page 282 of Freedom’s Law, and I don’t think I could express it any more persuasively than this. It says “Bork’s mistake in rejecting Griswold was not the mistake of pressing the law too far, but of misunderstanding what the law is. The Supreme Court argued in that case that people have a Constitutional right to privacy because we cannot explain and justify our Constitutional theory as a whole without also supposing that individuals have a right to make certain decisions about matters of personal and intimate concern to them to be free from the surveillance and moral demands of their fellow citizens.”
Thomas: Hmm. Does he have examples there?
Andrew: He does, and I, you know.
Thomas: We’re low on time, but essentially it’s a lot of other stuff wouldn’t make any sense at all if we hadn’t come to the conclusion that the Constitution guarantees some right to privacy, essentially, is what he’s saying?
Andrew: That is exactly right.
Thomas: Yeah. It’s what’s so frustrating about this game to me, because again, I have these family members where they want to bite that bullet, they want to say “yeah, no, everything should be a Constitutional amendment,” because it works for them, it works for their ideology to be like “yeah, take us back to the 18-effing-hundreds, and maybe, you know, States here and there will do some amendments or do some laws that will make up for it,” but they get to have a bunch of stuff taken back to the 1800s and then we’d have to work to try to earn it back. It strikes me as so unfair, 250 years later, to be like “actually for 250 years” or whenever originalism really started, which it sounds like it’s pretty recent, right?
Thomas: Yeah. Let’s say it’s 1980 or 1990 or whenever you want to say, Scalia’s at the height of his power, to say “look we have to undo 200 years of precedent because it wasn’t done under this new thing that I think it should be,” which is whatever they literally meant at the time, etc. etc. etc. It seems awfully convenient to me, and it seems like a completely unfair move going back to your principle you outlined in the first part of this, which is the rule of law, and how much we can rely on these rights that we all have, for good reason, for very good reasons, have said there is a right to privacy somewhere in the Constitution, in all these different things. To undo all that in an instant and say no, we’ve gotta build that all back up. Sorry, I don’t accept that that’s how we should do it.
Andrew: To piggyback on that, I’m gonna jump ahead a little bit. There are two more points I want to cover from the podcast. I was gonna end with this sentiment, but I think what you’ve said ties in so nicely that I want to emphasize it here. Thomas, you will find this familiar because I’m about to talk about Janus v. AFSCME.
Andrew: We’ve talked about that a lot on the show, we previewed it during oral arguments in episode 150, we discussed it again in episode 188 after the decision came out. This is the danger, and it’s not hypothetical. It is actual and illustrative of putting an originalist majority on the Supreme Court. Here’s what happened. For 50 years conservative political activists have been trying to change the law in Illinois with respect to unions. That law allows – allowed public unions who negotiated on behalf of everybody, but you don’t have a closed shop.
Andrew: You, as a person, as say a schoolteacher for example, had the right to opt out of the public union, but the public union still negotiated on behalf of all teachers. So, you got the benefits, but you don’t have to pay all the dues. The reason not to do that was, arguably, on 1st Amendment grounds, because unions take political positions and the idea was you’re being forced to subsidize a political opinion with which you might not agree. You like $28 an hour, you don’t like the fact they say “oh, and by the way, we’re also for gun control.” The compromise in the middle between no unions and closed shop in Illinois was that public unions could charge all employees for the non-political administrative dues incurred in representing them in collective bargaining. Now, that seems to make perfect sense. I don’t mean to suggest it’s not a hard case, it is a hard case. It’s like Everson. It’s one of those where you look at it and you’re like “okay, well, is there still an argument about money is kind of fungible so I’ve gotta pay some money to a union I don’t like,” yes.
In 1977 that went all the way up to the Supreme Court, again, because it’s not a super – it’s not an instantly obvious opinion, but the Supreme Court in a 9-0 case called Abood v. Detroit Board of Education, said alright, we get it, there’s the free speech issue, but there’s also the collective bargaining issue and it undermines the unions to allow you to free ride and gain the benefits of their negotiation without them being able to discharge any of the costs of negotiating on your behalf, so close call – not that close, 9 to nothing – but we think unions can do that. By the way, we don’t think they have to. It’s up to the citizens. If the people of Illinois like this system they can continue to keep it. If they hate this system they can vote in something else.
Andrew: They could vote in right to work laws. Nothing’s stopping them from doing that other than Illinois is a blue State and people didn’t want to vote in restrictions on unions, but conservatives [Clenched teeth] still hated it, so they tried again and again, and in 2018 – a couple years earlier they teed it up – they were like “hey, looks like the Supreme Court’s taken a wide turn to the right, let’s tee up that same case again.” The exact. Same. Case. Let us make our argument in our cert petition and in our brief Abood was wrong, you should overrule it, and you should force Illinois to say that unions cannot spread their nonpolitical administrative dues to nonmembers. They can only charge members if they are a public union. This time, they won, and they won for no reason other than the right wing like that outcome-
Andrew: -and thought the Court was wrong in Abood. If you think I’m being uncharitable, I am going to read you, from the second paragraph of Janus v. AFSCME. This is not Andrew Torrez, this is Samuel Alito.
(Quote) “We upheld a similar law in Abood v. Detroit Bd. of Ed., and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake.” (Well, that was the case in the existing case, but keep going) “Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions.” (By this conservative Supreme Court). “Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of free speech violations that Abood has countenanced for the past 41 years. [It] is therefore overruled.”
Now, if you strip away the fancy language, all of that is “yup, yup, we like to follow precedent, we agree unions have been relying on this for half a century, but … come on, man! Abood seems wrong to me, and so if it’s wrong then you have this-” that’s all the argument is. It was wrong, therefore it is no barrier that everybody has thought the law has worked this way for the past 50 years. It is no barrier to “yeah , keep trying” it doesn’t matter how settled up an opinion is, if the only standard, and you heard Baude say this, if the only standard is the law means what it meant at the time it was enacted, taken as charitably as possible, what that means is precedent can never be important. Epistemic modesty can never count, there is never a point in which you say yeah, it’s a close case, could be this way, could be that way, maybe we got it wrong. There is no – it is just “what do you think the founding fathers thought this meant in 1791.”
It gets worse than that – I’m actually gonna punt a couple of our things, but I do want to end with – [Laughing] I know we’re running super late, we always do. Julia tries to throw a couple of critiques of originalism at Baude, and I want to show how he gets them exactly backwards. You referred to this earlier, this is 45:20 in the podcast where she says, “One of the critiques that I see of originalism is that it’s too flexible and you can get whatever you want.” By the way, excellent if not fully fleshed out criticism. Baude gives two answers here, first he says there are a whole field of easy cases. [Laughs] Which, you know, is no argument whatsoever.
Then he says “you can’t force-” this is 46:42 – “that’s the wrong question, because you can’t force judges not to cheat.” He is 100% demonstrably wrong, here. You absolutely can shame judges. You can shame John Roberts, you can force judges not to cheat, because here’s what actually constrains Supreme Court justices. Their opinions are written down. And when they’re super stupid they get laughed at.
Andrew: And when they’re extra super stupid, nobody joins them. You wind up writing lonely dissents in the wilderness, which, by the way, is three-quarters of Antonin Scalia’s career. It gets ridiculed by later history, and, first and foremost, you don’t get to write majority opinions.
Thomas: I mean, until you get 6 Scalias on the-
Andrew: Until, right. That’s exactly right.
Thomas: But, yeah. Ideally.
Andrew: And so the battle over jurisprudence is fundamentally a battle of what counts as justifying your opinions? I read you what counted in Roe v. Wade. That was history and precedent, interpreting the meaning of the Bill of Rights and the 14th Amendment. If the only thing that counts is “what did the law mean to X person in 1791” then you can do two things. Number one, you can cherry pick evidence to your heart’s content. Remember when we had Seth Barrett Tillman come on the show, and he was super proud of – and I was kind of proud of him from an archeological standpoint-
Andrew: Finding the “here’s where George Washington accepted this emolument without going to Congress.”
Andrew: I was like, that’s super cool. It seriously is. Seth and I still correspond, he sent me an email a couple of days ago, I like the guy, but the idea that you would cite that in an opinion as evidence, no, man, you did the opposite of what a skeptic should do. A skeptic doesn’t go looking for random pieces of evidence that confirm your hypothesis, a skeptic forms the hypothesis on the basis of the bulk of the evidence. Random bits from history-
Andrew: -are way worse kinds of evidence than, I dunno, 200 years of uninterrupted history of it being interpreted.
Thomas: Absolutely. I told myself I was gonna just not talk for the rest of the time so we could finish on time, but screw it. I’m the editor, I guess I’ll edit extra. But another thing that occurs to me with this when I’m trying to piece this out, you’ve already made this great point that, you know, lawyers shouldn’t have to be historians and tracking down archeological digs of what, you know, the dinosaur fossils of what Washington did or didn’t do, that’s stupid, it’s not really what your job should be. I think you’ve made something like that point in the past. But I’m just realizing, let’s say these hard cases that often involve multiple amendments to the Constitution, multiple articles of the Constitution, different things like that, it becomes impossible to say “what would a person do at the time” when, let’s say you’ve got what’s in the Constitution in a certain article, and you’ve also gotten an amendment 100 years later, and then you’ve also got another thing. How are you supposed to construct a person at any given time who would have been in the mindset of all those different things? You know, you can’t really have – when some amendments were passed you can’t really say – because often these cases touch on multiple parts of the Constitution, it’s not just, as you said with Roe v. Wade, it’s not just one thing. How can you say “well, George freaking Washington in 1776” or whatever the heck you want to say, 1800, John Adams, whatever, he would have thought this about this part. But then we have to go – because originalists do allow for, obviously, amending the Constitution. Well, then a person in 18-whatever, the 14th Amendment or something would have thought this. How do you marry those two people into a person who would have thought a thing at the time? It seems impossible to me.
Andrew: I think it’s impossible to actually do. I agree with you with respect to that. The question is what counts as evidence in your favor?
Andrew: Originalists will say this. They won’t say, like, oh, I have a letter from George Washington saying “if there are ever horseless carriages-” you don’t get any of that.
Andrew: But what you get is “here is some evidence of what this word meant at that time” and the burden then shifts to those opposing it, and the second kind of master stroke. In addition to letting in all of this evidence that judges are super bad at is you wash away – literally, you heard Professor Baude handwave away precedent in this interview. The argument that you make, which is “well, if people really thought of this at the time it’s hard to explain the last 200 years of history.”
Andrew: The answer back to that is Clarence Thomas “well we don’t care, they just got it wrong for 200 years, the only thing that matters is what they thought at the exact same time and the second we can instantiate that, I don’t care how much violence that does to our jurisprudential history, to our case law.” That’s mind boggling to me.
Thomas: Yeah. I’m just thinking of more, you know, conceptual issues here. Originalism is a new thing, relative to the age of the country, right? It’s a new phenomenon.
Thomas: So, the idea that you can go back and say “well, people in the year 1900 should have known that they had to re-up these things.” When technology changed, I guess they needed to do an amendment every time technology changed to, like, re-up the Constitution? It’s weird to sit here and say “well, if you want to change something do an amendment.” Well, the fact that we’ve been operating for 200 years until whenever it is that originalism took off not under that assumption kind of messes that up, right? How do you get to do a do-over and say “well, they should have known that they needed to keep amending something” rather than relying on the jurisprudence all through that time that was kind of updating the Constitution for them, right?
Andrew: Yes, and it’s worse than that.
Andrew: Let me give you an example, I don’t have a citation but it’s an example that Dworkin talks about. It was the old signs that used to be posted at the airport, you know, again, he’s writing in the 80s and 90s.
Andrew: This is pre-9/11, but it used to say “you may not bring firearms, switchblades, and other personal weapons on board the aircraft.” The question is “can I bring teargas onto the aircraft?”
Andrew: The only answer is, yeah, what you have to do is you have to understand the class of things that are here, and while teargas is not the kind of thing that – because the argument to the contrary is very simple. The things that are also in that list are things that people are likely to have for self-defense. Weapons grade teargas, not one of those things. You know, the (quote) “originalist” argument, or the textualist argument might be if it’s not in the list, yeah, bring on teargas. Bring on infectious diseases.
Andrew: It’s not in that specifically enumerated list and until it is you’re acting like a legislator.
Andrew: How dare you depart from the written text of the Constitution? You know, look, an originalist could push back on this in a number of ways, I do not mean, and we’re not going to be able to steel man the opposition because of time, but the kernel there is true, which is there are cases of genuine ambiguity, particularly in lists.
Andrew: Originalism seems to imply that in the case of ambiguity the answer is “no.” Then the burden is to go back and amend the law or amend the Constitution or whatever. The view of everybody else seems to be that’s not how we do our laws. When we say “don’t bring firearms or tasers or knives on the plane,” that means, yeah, don’t bring a thing, don’t bring teargas, don’t bring that long stick with a pointy thing at the end. We get it, because it’s a question about the level of abstraction and the level of literalness.
Andrew: That’s what I’ve said from the beginning. I want to let you kind of ask a terminal question and take us out. We do not have time, I have to say 10 seconds on this argument at 35:50 where the more consequentialist you are the lower down the chain you are, interpretively, the more of a living Constitutionalist you are. Originalists are higher up the chain and more tied to their principles. That is – it is empirically nonsense, and it goes along with the criticism Julia throws up for him to smack down at 49 minutes of “aren’t originalists all conservative judicial activist hacks?”
Andrew: Rather than answer “yes,” he goes on a long-convoluted rant. I will tell you; you can google, Sheldon Whitehouse has updated his brief for 2020. If you google “Sheldon Whitehouse judicial activism,” in fact we’ll put the link in the show notes. 80 of 83 5-4 cases decided by the Roberts Court, again this is before Amy Coney Barrett joined, were joined by none of the court’s non-originalists. It’s 5-4, the 4 non-originalists in the minority. Of those 83 5-4 cases that break down on that, 80 of them delivered the conservative outcome preferred by the Republican party. Ask yourself this: Is it plausible that the founding fathers of this country in the 18th Century all just happened to line up with the precise arch conservative wing of the Republican party in the 21st Century? Or maybe are they being held up as puppets to hide those beliefs coming in? I know it seems more plausible to me.
Andrew: But I’ll throw that out there.
Thomas: If there are any people who maybe aren’t listeners to this show, or something, I feel like from my perspective the biggest switcheroo he did, and it’s really in my mind, this was a very dishonest tactic, in my opinion, is to say “well actually everyone’s an originalist.” All the judges are being originalists, and that just means you interpret the law as given. To use that definition, to say when you are saying the President has to be 35 that you’re an originalist, to swap that into “and therefore it’s the position that makes sense in anything else that deviates from that, you have to justify it,” then therefore, I think, in the listener’s mind that would make you think “oh, well then it should make sense that most of the Supreme Court should be originalist if everybody’s an originalist.” Yeah, sure, it makes sense. When what’s actually the case is it’s an extreme minority position that should not even be – it should actually disqualify you from being a Supreme Court justice, and you don’t get to use all the run of the mill easy cases to bolster originalism, to then swap that in and say “see? Most of the time everybody’s originalist so therefore this is the mainstream position that should be represented on the Supreme Court.” That strikes me as one of the most harmful things that he did, that I hope people won’t fall for.
Andrew: I don’t think I could put it any better than that. I will just say, again, this is a debate over the interpretation of the meaning of principles in the Constitution or principles in law, and what the non-originalist says is these clauses are drafted in abstract language, they are meant to embody principles that are then applied to circumstances as those come up, and that is not a bug but in fact a feature of our Constitution that has endured from the 18th Century to today. It has survived precisely because we have very few provisions that are age 35 or the 3rd Amendment. Almost everybody does it that way. Attempting to hijack that was tough on me too. Hopefully this is a good primer, lots of people are going to write in, I suppose, and I can’t wait to engage with that, but I feel very confident in what I’ve laid out here in these two episodes.
[1:07:27.9] [Patron Shout Outs]
[1:19:39.5] [Segment Intro]
Thomas: Now it’s time for T3BE, it’s the answer time! Time to get my itchy finger on that loser music that I play every time!
Thomas: Let’s see how I did on what I thought was a very tricky question.
Andrew: This was a very tricky question. This was a young man suggests to his friend, hey, let’s steal a TV from next door. Friend? Not a good friend, says yes.
Thomas: Yeah, friends engage in criminal enterprises with other friends.
Thomas: That’s just good friends’ stuff.
Andrew: Yup. Decided to use the opportunity to get even with him by having him arrested, so said “oh, yeah, sure, I will help,” then drives him out to the neighbor’s house. The young man breaks in while the friend remains outside and then calls the police on his cell phone and drives away, leaving the young man – I wish they would name these folks, it would be a little easier.
Thomas: Yeah. It really confused me for a minute.
Andrew: Yup. Leaving the young man to be arrested by the police.
Thomas: Or if it was just like young man and old man would have been find.
Thomas: You know? Young man and friend is kinda weird. What’s the relationship there?
Andrew: [Laughs] Young man is carrying the TV out the back door, and the question is, at common law, of what crime can the friend properly be convicted. I want to tell you, this is the very first question in 220 questions where I was prepared to give a win to one of two answers.
Thomas: Oh, wow. [Laughs]
Andrew: [Laughs] So, you [Laughs] said – this is also I think the first loss maybe ever for Thomas’ Second Chance Bar Exam. So, it’s a loss.
Thomas: Nah, not ever, but yeah.
Andrew: You said, right out of the gate, I’m torn between B, C, and D, eliminating what the bar says is the correct answer, A.
Andrew: No crime.
Andrew: Let me explain why the bar says that this is the correct answer. Again, these have no – this has been a fun T3BE for me. Not for you.
Andrew: Because your record is less than great, but it’s been fun for me because this just has an answer key but no explanation in the back.
Andrew: I have to reason out why they have reached their result. So, they say it’s A, no crime. My reasoning for that is because this is testing the fundamental principle of criminal law that a conspiracy, the crime of conspiracy is the crime of agreement. The fact pattern is suggesting there was never an agreement at any level.
Thomas: Oh, when the friend said-
Andrew: The friend was just pretending.
Thomas: The part where it said the friend said he would help. That’s not agreement?
Andrew: It said he would help, is why-
Thomas: So, you’re able to do the takesies – oh I said I agreed with the conspiracy, but I didn’t.
Andrew: [Laughs] An agreement is defined as a meeting of the minds.
Andrew: Not in terms of what you say, in terms of what you –
Andrew: -understand and believe.
Thomas: I guess I just figured our country just likes to arrest people more and charge them with stuff more.
Andrew: Fair, fair. In analyzing this, you have gotten to where I would have accepted – because you first said well it’s gotta be B, C, or D, can’t be A; it was A. Then you said alright, if I’ve got to eliminate one I’ll eliminate B. I would have accepted conspiracy-
Thomas: Just conspiracy? Yeah, no, it makes sense.
Andrew: To commit either burglary or larceny, because at the moment where the friend said he would help and agreed to drive the young man to the crime scene-
Andrew: That seems, to me, to be an agreement to take somebody to a place where you know they’re going to break in.
Andrew: Notwithstanding the fact that this was designed to test the agreement part, I would have overruled the bar examiners on this point.
Andrew: And had you said conspiracy, I was prepared to give it to you. The difference between C, burglary, and D, conspiracy and larceny, you got the distinction on those crimes correct. Burglary is the breaking and entering.
Thomas: So, this is a burglary, right?
Andrew: This is a burglary by the young man.
Andrew: And it is also a larceny by the young man in that he took the guy’s stuff.
Thomas: Uh-huh. If you break in and just hold the TV in the room.
Thomas: You just cradle it, that’s just burglary.
Andrew: You break in and alarms go off and you run, that is just burglary.
Thomas: Oh, that’s still burglary without taking anything?
Andrew: You have to intend to take something.
Thomas: Oh. If I just break in and pee or something.
Thomas: I’ve gotta use the bathroom! Augh! And I break into your house, I use the bathroom, I don’t take any of the toilet paper with me or anything, it’s not on my foot as I walk away.
Thomas: Then I’ve broken and entered. That is not burglary? I have to have an intent-
Andrew: The bar will test this.
Thomas: Oh, okay. With that exact fact pattern. [Laughs]
Andrew: With probably a similar fact pattern.
Thomas: I will have peed and I will walk out with the toilet paper on my foot, and it’ll be like “burglary!”
Andrew: What you must have is you must illegally enter a building.
Andrew: That is prong one, and you must, number two, have the intent to commit a crime.
Thomas: Okay. This is burglary again that you’re talking?
Andrew: Correct. It’s just criminal trespass if you break in to pee.
Andrew: If you break in to steal something but you don’t steal anything it is burglary.
Andrew: And if you don’t break in-
Thomas: Yeah, if the door is open and I walk in and take something is that just larceny?
Andrew: That’s exactly right.
Thomas: Okay. Alright.
Andrew: Yeah, I think you demonstrated a very good understanding of the law, just not-
Thomas: Yeah, my thinking on C, again I had a hard time choosing between the three wrong answers that it wasn’t. My thinking was oh, maybe he could have undone that conspiracy thing by calling – because didn’t you say something about-
Thomas: -you can get out of the conspiracy at a certain point. What was that?
Andrew: There is an affirmative defense of withdrawal from a conspiracy.
Andrew: To withdraw from a conspiracy, you must publicly identify to all of the members of the conspiracy-
Andrew: Hey, man, I don’t want any part of this anymore.
Thomas: Okay, you can’t just covertly do it to the police, that’s interesting.
Andrew: Yeah, and you must go tell the police, that is exactly right.
Thomas: How does this work with the fact that you just go tell the police and work with them as a mole but you’re still pretending to go along with it? Then you’re still part of the conspiracy.
Andrew: Yes, but then they-
Thomas: Just won’t charge you?
Andrew: Give you a non-prosecution agreement.
Thomas: Wow. Oh, okay. Alright, it makes sense. Now, revising, what does just the driver get when he’s in on it? They say “I’m gonna burgle their house,” you’re like “excellent, I’m a great driver, I will drive you there.”
Andrew: That is what threw you off at the very beginning.
Andrew: Once you agree to be a part of the criminal conspiracy-
Andrew: -and you know what the conspiracy is all about, even if you agree to a reduced role in the conspiracy-
Andrew: -you are responsible for all of the acts undertaken by the conspiracy-
Andrew: -as part of that conspiracy charge. In other words, you can’t say – and here is the classic example which this comes up, because criminals don’t know the criminal law. [Laughs] The getaway driver will say “well, yeah, I knew we were gonna rob the bank, I agreed to drive him there, but I didn’t agree to shoot anybody.”
Andrew: I just wanted to pick him up and drop him off. Then, but you knew you were driving six heavily armed thieves in the SUV to the bank, then when they go into the bank and instead of getting the money there’s a shootout and you as the getaway driver try to say “oh, you should treat me differently.” The prosecutor will say nope, you agreed to be a part of this bank robbery conspiracy, you’re responsible for the foreseeable consequences of what happened, you shouldn’t agree to drive armed thugs to the bank if you’re not willing to do the time.
Thomas: Okay, just to make absolutely clear for next question in which I’ll forget it and still get it wrong.
Thomas: Are you still guilty of burglary in that case? Or is it just you’re part of the conspiracy so you get charged with the conspiracy?
Andrew: Correct. You get charged with conspiracy to commit burglary at that point, yes.
Thomas: But not burglary?
Andrew: But not burglary.
Thomas: Oh! That really messed me up. Okay. If I’m just the driver I don’t get charged with burglary, I get charged with conspiracy.
Thomas: Really? But I could still get charged with murder if they kill somebody?
Andrew: Under the felony murder rule, but yes.
Thomas: Oh, but that’s kind of a different thing?
Andrew: That’s a separate thing.
Thomas: So that doesn’t apply to, like, any crime?
Thomas: If I’m part of a conspiracy and they do some other crime that’s not murder, they, I don’t know, litter on the way in, it’s not like “well, you were part of the conspiracy, littering is on you as well, litterbug.”
Thomas: They don’t do that? It’s just murder.
Andrew: Correct, correct. But what you would do is you would take the highest potential offense to which any member of the conspiracy actually committed a crime, then you would charge all members of the conspiracy-
Andrew: -with conspiracy to commit that crime.
Thomas: Which is separate. Conspiracy to is a different thing than the thing.
Andrew: Correct, correct.
Thomas: Yeah, okay. Alright, yeah, I blew this one. I blew this one pretty hard. That was bad all around. Just poor performance. I’m getting worse! That’s cool. Alright. [Laughs] Let’s see who didn’t get worse at the bar?
Thomas: Who continues to perform well?
Andrew: I wish to register an objection to that characterization. I’m sorry this one went badly.
Andrew: But let’s see for whom it did not go badly.
Thomas: [Laughs] Yeah.
Andrew: Well, Thomas, a lot of people picked C or D. It took a while to find a correct answer. We had a couple on Twitter, I think the best comes from Thomas Mowle, or officially Thomas Mowle PhD WIP The Vortex: An Iraq War Story, who writes “A. Total exoneration! Burglary by Jungman, friend never got stolen TV so no larceny, not D. Friend didn’t break in so not burglary unless with conspiracy, not C. Just conspiracy? No mens rea.” That’s what we just discussed, “Friend never joined plan, nothing to renounce, not B.” Therefore A.
Again, I would have taken conspiracy for the reasons we’ve described, but this is 100% the reasoning that the bar exam was looking for. Congratulations Thomas Mowle, and everyone give them a follow. That is @ThomasMowle on Twitter and congratulations on a difficult topic, on a tough question, which a lot of people got this wrong, for being this week’s winner.
Thomas: And that’s our show! We’ll see you next time, everybody!
Thomas: Thanks for listening.