OA9: Abortion, Roe v. Wade, and the Constitution, Part 1

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello, and welcome to Opening Arguments. How's it going, Andrew?

0:01:22 Andrew: It's great. How are you, Thomas?

0:01:23 Thomas: I'm doing great. I feel like, now not, we've been going off on all these milestones, you know, and stuff, but I feel like this is the, in some ways, the first episode of like an ongoing podcast. You know, we got all those ready for everybody and we just sent them all out at once, but this is a unique experience for you and I because we're recording and going to release this in real time. It's interesting, thing, so I'm happy, that's my answer.

0:01:47 Andrew: Yeah, I feel the same way. I am really excited with the reception we've gotten so far. I hope that that continues and people are sharing the show with their friends and all of that good stuff that we harp about on social media all the time. I'm really excited and I hope, hope that shows in the show.

0:02:05 Thomas: Awesome. Yeah, me me as well, and I would say let's get to our first segment, so

0:02:07 Andrew: Uh,

0:02:11 Clip: He who questions training, only trains himself at asking questions. What?

0:02:19 Thomas: So Russ Kanjorski asks, do you think a liberal court would overturn Citizens United? Is the court more political now?

0:02:29 Andrew: And I love this question, so I'm going to not answer it in one way because Thomas, as as you know, uh, we are going to do an entire episode on Citizens United, um, so I or possibly multiple episodes. Uh, we might be able to get it into one if we can get our Patreon goals up to producing the show in an hour.

0:02:41 Thomas: Uh-oh. Or Or Multiple I I have to point this out to I have, as usual, I have to slow you down, but I have to point this out. A listener did say to me on Facebook that if there was a bingo for our show, the center square, the free center square would be topic for another show. And I said, you know what? You're right. That would be the free square. Topic for another show, Citizens United, but you're going to answer it a little bit today, right?

0:02:58 Andrew: Right. Um, And let me say, if uh, anyone wanted to make, uh, an Opening Arguments bingo, that would be spectacular. I would, I would love to see that, um, so, um, you recall all the way back to the first episode that you and I did on Atheistically Speaking, I gave you what I think is a fair representation of the mainstream legal definition of judicial activism. And it's a little bit different than the political definition of judicial activism, so, a to lawyer, a court is judicially active if there is more discretion in the judge's hands to shape the outcome of what that case will be, and it's less predictable going into it, in other words, easy trivial example would be if you go into traffic court, right, everybody knows that there are different kinds of judges that sit in traffic court. And you might draw the judge who, well, you were going 67 in a 65, I'm going to uphold the ticket.

0:03:23 Thomas: It'll someday. Day, it'll come, but

0:04:16 Andrew: And you might draw the judge who says, well, I know you were going 74 in a 35, you know, on a school day at two in the afternoon. But, write

0:04:24 Thomas: I hate kids. So Yeah, so

0:04:25 Andrew: Right. There's a wide in other words, there's a large range of judicial discretion. And you can't. Right.

0:04:31 Thomas: That's Judicial activism, right there, by a

0:04:33 Andrew: And now I know.

0:04:33 Thomas: Legal definition.

0:04:34 Andrew: Yeah. Now. And again, it's a little I think I'm the first person to apply that in traffic court. Right? I mean, it's usually we think about it as how laws are applied. But I I mean, that's a case of the law is very, very clear, right? It says you will not go faster than 65. but the outcome, right, you go faster than 65, you know, 67 or 69 or 74 or whatever. The outcome depends on how the judge is feeling that day.

0:05:01 Thomas: Yeah.

0:05:01 Andrew: Right. Like that's That's kind of the maximum of judicial activism as it's used politically. Right. It's used as a court has reached a politically liberal result. And the group that has really pioneered that redefinition has, in my view, particularly when they've lined up behind former Supreme Court Justice Antonin Scalia, have endorsed a conservative kind of judicial activism that results in politically conservative outcomes that were not otherwise predictable looking at the status of the law. And a really good example of that, you and I did, gosh, three or four hours on the Second Amendment. And I think I legitimately surprised you when I asked you, you know, how many gun cases you thought the Supreme Court had handled from 1789 to 2012. And the answer is one, right? Or 2008.

0:05:01 Thomas: Yeah Right. Right.

0:05:55 Andrew: I'm sorry, the first D.C. v. Heller is 2008. But right. 230 years, 220 years. And the answer was one. And on the basis of that, which, by the way, upheld the ban on sawed off shotguns, as we discussed on that show, if you went into it, you would say, how would a Supreme Court treat a 30 year old District of Columbia ban on handguns that everybody has all has thought was constitutional for the past 30 years? And by the way, no case in 200 years has ever struck down a federal gun control law as violating the Second Amendment. The answer to that is, well, that's probably constitutional. But you couldn't predict that. You would have made that prediction

0:05:56 Thomas: Right, you

0:06:35 Andrew: And you would have been wrong because you had an ideological conservative activist in Antonin Scalia on the Supreme Court. And I have made that case. I'm going to continue to make that case throughout opening arguments. If there are listeners that feel differently, feel free to email us at openarguments@gmail.com. We will engage with all of that. So my answer to Russ's question is, I think the next Supreme Court, assuming that either Merrick Garland is confirmed in the lame duck session, which I.

0:06:35 Thomas: Wrong, yeah, oh yeah I totally forgot about that guy, is he still around? He's like, hey, hello, I'm ready to be a justice here, we go.

0:07:07 Andrew: Yeah, yeah. Yeah. I Like you, you said, "I totally forgot about that guy," in exactly the same tone of voice as at the end of Trading Places, where the guy is left in a gorilla suit in a box. I don't know if I don't know if I don't know if you've ever seen that, but

0:07:23 Thomas: It's been a a while since I've seen that movie. I've seen it, it was a great movie, but it's been a while, so I don't, I don't have the strong memory of it.

0:07:27 Andrew: Exact same exact same line delivered in the exact same tone of inflection, Norm Macdonald, not in that movie. Anyway, my answer is, I think there are some signs that we will talk about in future episodes in more detail, that the next court, if it is a 5-4 liberal court, which is to say if Donald Trump does not win the presidency, I Think the next court may rein in some of the excesses of the Scalia era. But I don't believe that the current justices on the court, on the liberal wing of the court are activists in the same way. Like I don't think, and I can make this, it would require a longer segment. But when you look at Ruth Bader Ginsburg's opinions, for example, I think there is a strong deference to precedent. I do not think, that the next court is going to overturn the Employment Division v.

0:07:30 Thomas: Okay. Yeah. Topic

0:08:23 Andrew: Smith case that we've talked about that essentially gutted the Free Exercise Clause of the First Amendment, because that was 26 years ago now, and that's become an established part of our law. I would put a low probability on the next Supreme Court declaring capital punishment, you know, blanketly unconstitutional. It was at one point for a very brief period in our history in the early 70s. And then it was really re-legalized in Furman versus Georgia in 1976. And yeah, yep.

0:08:53 Thomas: For another show, by the way, death penalty

0:08:56 Andrew: The short answer to that is, I do not think the next liberal court is going to go as far in what one might call activist decisions as the Roberts court and the Rehnquist court before it went, particularly with Scalia, as sort of, you know, not behind the wheel, but backseat driving on a lot of those cases.

0:08:56 Thomas: Well, There you have it, an expert's opinion. Now's the part where I add my my thoughts on that. It, I would say it's weird that we call Scalia an ex, you know, justice, because as far as he's concerned, I think he's still on the Supreme Court, he's just no longer alive, you know, what, what I mean, like I feel like there should be a different term for that, like, no, if we could wake him up today, be like, no, I'm still, come on, I'm still on the Supreme Court, it's like, you know, deceased but still actively, would definitely be adjusted, you know, there's got to be a better term for that, that's my very critical opinion on everything you just said, no.

0:09:49 Andrew: I was using XJustice in the same way that Monty Python uses XParrot. So, sure.

0:09:57 Thomas: No, you're right, that's a, that's, that's good sense. All right, keep those listener questions coming, and we will keep on bringing an expert opinion and a not-so-expert take on what was said.

0:10:12 Thomas: Right, let's head over to our main topic for the day. I'm excited about this. This is a case I believe I've heard of, uh, Roe v. Wade, could... Yeah. Tyler Vela commented, it was actually, I don't even know that it was to me, actually. I observed it on Jake Farr-Wharton's page. He's another podcaster, listeners might know. But he said, considering that killing children is not a constitutional right, then no, it's not. Neither are any of the justifications for abortive rights, contrary to myth. This is the important part, the other stuff you might have needed some context, but this is the important quote here. Contrary to myth, Tyler says, privacy is not actually a right given in the Constitution.

0:10:57 Thomas: So no. So that was intriguing. I saw that comment. I didn't butt in because that was, you know, it was an argument they were having, but I thought, ooh, you-know-who-might-be-able-to-tell-us-if-this-is-a-myth is one Andrew Torrez. So what do you think right

0:11:12 Andrew: Yeah, what Tyler says there is something you see a lot in the pro-life movement, and there are really two components. The first is, is a fetus a person for purposes of the 14th Amendment? And the second is, is, is the right to privacy in the Constitution? So I think we can look at both of those questions, again, using what I would describe as the mainstream legal jurisprudential method, and inform our discussion on those two points, right? Which is not to say, you know, that there are arguments on both sides. We're not really here to discuss the political side of the argument. I I will happily disclose that think I Roe v. Wade was rightfully decided, was correctly decided. I think that the general scheme that it sets up, which we'll talk about, is one that represents a pretty good consensus in this country. And I would identify myself as pro-choice.

0:11:40 Thomas: Sure yeah I think it's safe to say we're both you know we say this on the show we're Both Coming From The Left but I think that one thing that's really cool about you Andrew is we can talk about okay assume I were actually against abortion we could still talk about the legality and say okay where would I have to go what would I Have To Do What Legal Concepts Would I Have to Know In Order To Make My Case Whereas It's Not As Though You're Going To Make A Case He's like, no, the law definitely means that, you you can never be pro-life or something like that. So I think that'll be really interesting to discuss as we get further along in the topic.

0:12:18 Andrew: Yeah, right. Right. This first question is something I see a lot, and I think it's a terrible argument. And I think it's terrible argument because, in my view, the people who are pushing it are doing so in a disingenuous manner. And the evidence that I would put forward for that, I'm going to link this article in the show notes, but it is an interview on LifeNews.com, which is obviously a a pro-life site, and it is discussing an interview with former presidential candidate and U.S. Senator Ted Cruz, who I might add was two years ahead of me at Harvard Law School, so we actually overlapped while I was there. I was not smart enough to suck up to him or whatever Ever. Uh, while I

0:13:37 Thomas: Yeah. Well, did you, did your husband, did he, did you meet him? Have you, have you, did you know he was the Zodiac killer then?

0:13:39 Andrew: Was there. Oh, Yeah, no, I, I have, I have met him, uh, but I did not No, I did

0:13:46 Thomas: Or it was a revelation then is what you're saying. When you found out he was this Zodiat killer, it was surprising to you. Okay. Interesting.

0:13:46 Andrew: Not, no, it was, uh, yeah, it was surprising to

0:13:55 Thomas: Yeah. Certainly.

0:13:56 Andrew: Me. So this is an interview with, uh, with Princeton professor Robert George. And somebody, I can't recall if you had ever mentioned listening to the Reasonable Doubts podcast before it went defunct. Yeah, no, I thought that was a great, I thought, I thought you said you did. And I thought there was a great podcast. They talked about Robert George, he is pushing from the right a very sort of natural law heavy set of arguments for various conservative principles. So Princeton professor with a legal background interviewing Ted Cruz. And here's the question George asks to Cruz. And just knowing what you know from Opening Arguments, I want you to think about Ted Cruz's answer. So George says, now, Senator Cruz, do you believe that unborn babies are persons within the meaning of the Equal Protection Clause of the 14th Amendment? And if so, will you call upon Congress to use its authority blah blah blah to protect the unborn or do you take the view as some do we can't do that until Roe v.

0:14:12 Thomas: Yeah, oh,

0:15:02 Andrew: Wade is overturned either by the court itself or by constitutional men okay so he's he's responding to the first premise of Tyler Vela's argument and here's what Ted Cruz says and I and I want to emphasize Ted Cruz graduated with honors from Harvard Law School is unquestionably a very very smart person right Right. Is.

0:15:18 Thomas: My God, I forgot about that. He's completely undermining your credentials. Oh my God, no, that's so unlucky, we should not let this get out, that people will never take you seriously again, Andrew, that's already a bad sign, by the way, like, whether there's a detailed, like, multi-point question, he's like, yeah, absolutely, definitely, totally, shall

0:15:25 Andrew: Yeah.

0:15:34 Andrew: Here's what Ted Cruz says. Listen, absolutely. Yes. I think the first obligation.

0:15:45 Andrew: Right. I think the first obligation of everyone in public office is to protect life. Life is foundational. In fact, as you look at the declaration that ordering of unalienable rights, life, liberty and the pursuit of happiness. I think it's very deliberate. Without life, there is no liberty. Without liberty, there is no pursuit of happiness that builds each upon the other. And I very much agree with the Pope's longstanding and prior Popes before him longstanding call to protect every human life from the moment of conception to the moment of natural death. Now, again, that's the answer of an honors graduate from what I would call all, the nation's most prestigious law school.

0:16:25 Thomas: We hear a rebuttal from, from, uh, unqualified Opening Arguments co-host Thomas Smith is that, what, that's yes, rebuttal? Oh, you're such a genius.

0:16:31 Andrew: Yes, yes. What initially strikes you about that answer?

0:16:36 Thomas: Andrew, you're so good at this, you're so good at this, everybody can answer this who's listened to the show, Declaration of Independence is not, it's legal precedent, it has no standing in law, it's just, it's just a letter that a guy wrote, well, several people wrote, but it still, right?

0:16:52 Andrew: Absolutely. Look, and there's no way Ted Cruz doesn't know that, right? There's no way Robert George doesn't know that. It was a deliberate obfuscation of the answer because the the answer is contained in the predicate of George's question, right? Or do you take the view, as some do, that we can't do that until Roe v. Wade is overturned either by the court itself or by constitutional amendment? And absolutely, right, the fact that there is a large and active conservative group that wants to amend the Constitution to include life within the meaning of the Constitution as arising from the moment

0:16:56 Thomas: All, right,

0:17:30 Andrew: Of conception is, I think, a pretty good indication that, um, that you need a constitutional amendment in order to do so. Um, and this is one of the first of this question. It will not surprise you was actually considered by the Supreme Court in Roe v. Wade. And so if, if Ted Cruz were answering this in a legal gathering and not on some, you know, dumb ass TV show, uh, he would have answered the question differently because he knows it Again, to

0:17:30 Thomas: That you need a constitutional amendment, yeah, would he have been laughed out, just like, okay, he's he's just

0:18:03 Andrew: Say, yeah, but I emphasize because, look, none of us can, you know, crack open Ted Cruz's skull and determine whether he's lying or not.

0:18:03 Thomas: A devious guy he's a guy who's, who's going to say what he needs to say at the time, or

0:18:21 Andrew: But I think you can draw a pretty strong inference when a lawyer takes a question about the law and deliberately makes reference to a philosophical, non-legal answer in response. Right. Because when you say, is a fetus a person for purposes of the 14th Amendment? The question is, well, how do courts and most particularly the Supreme Court define person for purposes of the 14th Amendment? And that that's not as a question as you might think

0:18:18 Thomas: What species he is yeah,

0:18:53 Andrew: That it So, yeah.

0:18:53 Thomas: I actually have no idea, I'm, now I'm curious, if we're going to, are you going to go, are you gonna set up the history, are we gonna know, how, how they might have defined it before Roe v. Wade versus after, or if that had no effect on it.

0:19:05 Andrew: Yes, absolutely. I'm going to do those things. Looking at Roe v. Wade, for example, we talked in the opening segment about Citizens United. We heard Mitt Romney, you know, sort of get mocked in the presidential primary for stating a sentence that, in fairness to him, is legally true, which is corporations are people, my friend. Right. Right. So when you ask what is the definition of a legal person, abortion rights activists will sometimes, you know, give you the closed arguments, duh, look and say, you know, well, look, if it's if it's the offspring of two human persons, you know, it's not a salamander. It's not, you know, a Martian.

0:19:10 Thomas: Okay, Right, right. Yeah. Yeah.

0:19:47 Andrew: It's a human and human is therefore a person. But that's not really helpful when you're talking about what what comprises a legal person. Right. Because a corporation, in many cases, is a legal person with legal rights, even though that corporation is not the biological offspring of two parents. It doesn't have a beating heart and all that other stuff. So it's a real question. And unsurprisingly, although

0:20:12 Thomas: Most corporations aren't started by being a little too drunk and accidentally not using contraception. Most of them, some of them are actually, but most corporations not started that way. Just fun fact.

0:20:23 Andrew: Some are, as somebody who incorporates corporations and organizes corporate forums, I can tell you not all of them are providently formed.

0:20:26 Thomas: Yeah.

0:20:37 Andrew: If you turn to Roe v. Wade, we're going to link it in the show notes, and you scroll down to page 159, which is the bottom of section nine of the opinion. And I know we're skipping around in the opinion, but to answer this particular question, the Supreme Court actually looked at the question of fetal personhood. And they said Texas, which was the state law prohibiting abortion that was challenged and overturned by Roe vs. Wade. The court said Texas urges that life begins at conception and is present throughout pregnancy, and therefore the state has a compelling interest in protecting that life from and after conception. We need not resolve, the court now says, we need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary at this point in the development of man's knowledge is not in a position to speculate as to the answer.

0:21:30 Andrew: And then, you know, they go through the history, and I do want to talk about some of the history that goes into it. But I wanted to start with that section of the discussion because, again, I think it ties into our notions of judicial activism. And I would say this, you are free to argue, and you may even have a good argument that philosophically life begins at conception. You may have a gut argument that, philosophically, the court should err on the grounds of thinking that life begins at conception. But it is the height of judicial activism to ask the Supreme Court to conclude as a matter of law with no dissent that life begins at conception, because that is not a belief that is widely held as a fact.

0:22:18 Andrew: It is not among any other schools of philosophy. And we could talk about it's not even a belief that is widely shared among all religious traditions. And so part of what the court is doing here is a kind of judicial humility. And I say here, I mean, in Roe v. Wade in 1973, in what, you know, conservatives rail as one of the most activist decisions. But for that court to endorse the view that life begins at conception would be taking a philosophical view outside of the scope of U.S. law and enshrining it effectively in the Constitution.

0:22:54 Thomas: So is it a case of people saying, okay, we don't know the answer, therefore go with this specific belief about the answer. And you're saying, well, why do you get to do that. Like we have to look at the breadth of views on the question. Is that somewhat what you're saying?

0:23:09 Andrew: That's exactly right.

0:23:10 Thomas: Well,

0:23:11 Andrew: And so if you look in Supreme Court history, there is no case. Again, so this is like the gun control case, except I'm telling you in advance the answer is zero. If I ask you how many Supreme Court cases have have directly said that human life begins at conception, that answer is zero, and when you expand it to have arguably said that human life begins at conception, that answer is still zero. So when you look for precedent, you will not find it. What you will find is instead a pretty good discussion in Roe v. Wade about the history of this belief. And so the court says, it should be sufficient to briefly note the wide divergence of thinking on this most sensitive question. There has always been strong support for the view that life does not begin until live birth.

0:23:57 Andrew: This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken, and this is at the time, to represent a large portion of a large segment of the Protestant community. I think that's no longer true, but it was true in 1970s. Organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter of the conscience of the individual and her family. And then they go into a discussion of common law. You might be surprised if you have have not read the Roe v. Wade decision to learn that most abortion bans are a relatively recent phenomenon.

0:24:32 Thomas: I was going to ask you About that. Are we going to get into sort the history of this case? Sometimes I found it really interesting when you've talked about how the case came up, how the, you know, what the original challenges. So how many of these abortion laws were there at the time? So Texas decides we got to stop this, you it that happened and then they were sued, or was it this is something that's been around for a while? Different states, lay it out for us, if you don't mind. Uh-oh.

0:24:58 Andrew: Well, why don't we scratch off the center card of bingo and plan to go through the history of walking through the Roe v. Wade decision in part two. But I want want to conclude part one with sort of answering that first half of Tyler Vela's question, which is to say, is there support in the law for the argument that a fetus is a person for purposes of the 14th Amendment, as Tyler Vela has argued, as my good friend Ted Cruz has argued? And I think that is not a defensible legal argument. It may be a defenseful philosophical argument, but it's clearly not a defensible legal argument, and I think the existence of conservative groups seeking to amend the constitution is a recognition among, you know, honest lawyers and advocates that are on the pro-life side that, um, that hey, that, you know, the current status of the law, the current history of the law is such that it's not clear - there was - there's definitely no intent, regardless of your view of how we ascertain constitutional rights.

0:25:03 Thomas: Okay. Right.

0:26:05 Andrew: In other words, if we look back to Framer's intent, if We look to an ongoing intent, you know, there's... there's no support for the view that a fetus is a person under the 14th Amendment. And I would point out that the dissents in Roe v. Wade do not make that argument and do not claim that this is a longstanding principle that is being abrogated. So I can find no support for that argument in Roe v. Wade, and I thought that was a good way of handling the first half of Tyler's question.

0:26:34 Thomas: Well, Absolutely. Because It sounds from what you're saying that even if you were pro-life, that argument doesn't make sense. It's definitely motivated reasoning, where you're trying to say, no, no, it turns out the law all along said, you know, life begins at conception, and we've just gotten it wrong. Now, uh, it sounds like even if you are staunchly pro-life, legally, with the legal expertise that you have, you would not make that argument.

0:26:59 Andrew: Correct.

0:27:00 Thomas: Although Ted Cruz might, even though he probably knows better. Yeah.

0:27:04 Andrew: And again, there is no doubt in my mind that somebody as intelligent as Ted Cruz knew exactly what he was doing when he was giving that answer.

0:27:12 Thomas: Getting Those votes all, Right, well, this is really cool. I like this. This is sort of like we've, we've started the issue, we've, we've laid out one part of it, but then in the next episode, we're going to go back and get into the history and all that. I like that a lot. And just to keep in mind, everybody, if you don't like us having to stop like this, and frankly, who does? Go over to patreon.com/law, make a small pledge. We're getting close. We're nearing the hour-long goal. We're get in there. We're gettin' close. So that could become a reality and we won't have to pause and do multi-parters, with that paused for until next episode. Let's go to our next segment.

0:27:14 Andrew: Yep.

0:27:49 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:27:58 Thomas: Closed arguments. I love this one. So this is an interesting one. I would like, so I will pose it. Andrew, do I live in the 49th worst state according to freedom? Do I have less freedom than 48 other other states, and do you have less freedom because yours, your great state of Maryland was what, 46th, I think you said. I don't Have it up, 46.

0:28:24 Thomas: Are there 45 other states ahead of you freedom wise?

0:28:23 Andrew: Yes. Yes, yeah. Yeah. So this is a recent Cato Institute study. We will link this in the show notes about freedom in the 50 states. They put this out every year and they rank all of the 50 states in descending order for how free they are. California ranked 49, New York ranked 50, My state of Maryland ranked 46th. And so do we live in an actual, you know, it's one step removed from a gulag. And I would point out that by this methodology, you can hover over states. And so the dream states for you to live in if you are an advocate of the Cato Institute are South Dakota, Oklahoma, Indiana, Alaska, and New Hampshire.

0:29:18 Andrew: Other states, they seem to like, they love the state of Alabama. They're the 23rd overall. So we could double our freedom, Thomas, if you and I moved to Alabama. Alabama.

0:29:28 Thomas: Double your freedom, double Double mint gum. Yeah. There you Go.

0:29:29 Andrew: Yeah. Yeah, and now that if that seems kind of counterintuitive to you, it seemed a little counterintuitive to me, and so I thought we might ask, just think about if you were deciding what makes you free, What Kinds of things would you carry? Because certainly, I think the, the idea of ranking the states by freedom is an interesting prospect. I could envision, there are lots of things that I can envision that would make me feel less free or more free to move to a certain state. So I'll give you a really, really fun example from my life, which was I moved from the state of Maryland to the state of Massachusetts when I went to law school, and I encountered for the first time, on Super Bowl Sunday, when we ran out of beer at a Super Bowl party

0:29:47 Thomas: Okay. Oh, Fearless.

0:30:23 Andrew: That I was hosting Massachusetts. Then, I think they've changed them a little bit now, but then oppressive blue laws. When we run to the nearby convenience store, I asked, hey, can I buy, you know, a couple cases of beer? I get 20 people over and we're, we're out of gear and we'll watching football. And, uh, and the person laughed and said no. And I said, was there someplace close where I could buy beer? And he said, well, I suppose you could drive to New Hampshire. And we went back and watched the second half of the football game while drinking Tap Water.

0:30:54 Thomas: Oh, My God, that is not freedom. That Is the opposite of freedom. Wait, a bald eagle was crying as you went back to your Super Bowl party and drank water. Boy, I'm glad you brought that up because that wouldn't have occurred to me, because I live in the great state of California, the great free state of Carolina, where I can go To a gas station and buy as much beer as I want. I had no idea, because I don't travel all that much, but I've talked to people who are like, yeah, we don't have wine in a supermarket. Supermarket, I thought, wow, that is insanity. I could not imagine not just being able to buy wine, beer, spirits, at a supermarket. So, I'm glad you brought that out.

0:30:56 Andrew: Yeah. Yeah.

0:31:34 Andrew: Cannot

0:31:34 Thomas: Because that, that would be my number one. Like, I would rather, I would rather be under house arrest but also be able to buy alcohol as I needed, then, uh, then the other way around. You

0:31:45 Andrew: Yeah. And we cannot buy alcohol in the supermarket here in Maryland. And again, I mean, you know, I bring it up.

0:31:52 Thomas: Need To get Out of that hellhole.

0:31:54 Andrew: Yeah. I bring it up because on a day to day, you know, when you're thinking about how do you set up an index of freedom, right? This is a decision that, right, affects A Lot Of people in their day to day lives, and it's a, it's absolutely an intrusion onto your liberty, right? Like, I, I would like to purchase some beer, you would like to sell me some beer, but the government has required you to stick a tarp over the beer on Sundays or not stock it In your Grocery Store.

0:32:06 Thomas: Yeah. Oh, My

0:32:22 Andrew: Whatever.

0:32:21 Thomas: God, That Is So Ridiculous.

0:32:22 Andrew: So So, so alcohol is three, two point nine percent of the Cato Institute's calculation, uh, But But Blue Laws are 0.4% of that, right? You know, the other stuff are things that affect basically like alcohol distributors and shipments and whatever, which I will not go into. But I thought it might be fun thinking about, you know, like the blue laws, what occurs to you as what you would use in your metric to decide on state freedom. And we can talk about whether it's in the Cato Institute study.

0:32:23 Thomas: That Needs To Be 78 Percent. Oh, That's a sort of an abstract question. I, I suppose I'm pretty free to do what I want, like, you know, get gay married if I want to, or do, I don't know. I'm Really not sure. Uh, I, what occurs to me after you describe the blue laws, which I did not even know were anything, uh, is, I, a couple states have legalized marijuana. I mean, I, I, I'm not a big pot smoker myself, but I would, I would think that if we're thinking freedom, that would be more freedom rather than, you know, not being able to buy marijuana. Wow.

0:33:11 Andrew: Yeah, yep, I agree. And marijuana freedom is 2% of the Cado Institute's calculation. You mentioned gay marriage. That is also, so we're listing good things about it. That is 4% of their calculation.

0:33:46 Thomas: It's, it feels like there's a whole lot of percent not being represented so far in what we've discussed.

0:33:52 Andrew: Well, and so while we're thinking about that, right, those are political hotbed issues. But think about the topic of today's discussion. Right. Certainly access to abortion.

0:33:58 Thomas: Yeah. Getting an abortion. Yeah.

0:34:04 Andrew: It's probably not that important for for me and for you. I can think of 50 percent of the population for whom it would be very, very critical. Not at all listed. You know, well, that's

0:34:14 Thomas: Hey, I,I take your point, but, I also think it's pretty relevant to me, actually. I, I think it is quite relevant if I, if I, you if, if my wife for health reasons needed an abortion, holy shit, would I want to be able to get one? You know, rather than being forced to risk the health of my wife. Yeah.

0:34:19 Andrew: Right.

0:34:28 Andrew: And yeah, no. And obviously I was cracking a joke, but it's something that I think is incredibly important. And I would want to understand the difference between, you know, we talked last week in the Satanic Temple case in the state of Missouri. Right. I don't think of Missouri as being Oklahoma or Mississippi or something like that. But in the State of Missouri, there's apparently only one Planned Parenthood in the entire state that performs abortions.

0:34:38 Thomas: Right that was surprising to me. I didn't realize that. What

0:34:59 Andrew: Um and you know, how many hoops do you have to jump through? Do you have to get the mandatory ultrasound? Do you have to have a 72 day wait, a 72 hour waiting period? You know, what, what, what kind of restrictions are there? All of those calculations are not in the Cato Institute report, um,

0:35:19 Thomas: About having alien overlords is that like a big percent? Say I would, I, for one, welcome our insect overjust to get we got obligatory Simpsons reference into every show

0:35:27 Andrew: Yeah. Right. Yeah. Once once per episode, Kent Brockman there. I have been leaning towards the I've said it before and I'll say it again. Democracy just doesn't work, which is in my mind, one of the greatest Kent Brockmon quotes. But now so, you know, you've OK, so you think about reproductive freedom, not not on the list. Uh, what, about this is not a political issue, what about whether the state has no fault divorce laws? Uh, what about the state's laws about child custody? I mean, I can think of, you know, I have, um, sadly, friends who are going through, uh, divorce right now, and I can tell you, there is no, you know, you assign a percentage, they would assign 99 to you know, do I get to see my kid again, and yeah. Yeah, like,

0:35:31 Thomas: Yeah yeah pretty big yeah oh yeah yeah right

0:36:16 Andrew: You know, if I were if I were in that situation, I can't imagine anything more important than than doing something not on the list. Weird things are not on the list, right? Things that you would think are on the Cato Institute's libertarian, wish list. So school choice is not on the list and that's certainly something that, you would think about, right, am I free? Because I think school choice definitely does increase your freedom, right. It makes it easier for people to attend religious schools. Now, I think that's also prohibited by the separation of church and state by the Establishment Clause of the First Amendment. But it would be more effectively free to the person if they're getting a subsidy to attend a religious school. And different states have that. Not on the list.

0:36:21 Thomas: Right oh that's a big one, sure all right, I think it's time, we're, we're getting short on time, so what is on the list? What are the things here that are taking up all this percentage? That's not alien overlords, yeah yeah

0:37:02 Andrew: Yeah. Yeah. So, 32% is tax policy. What's your tax rate? Minute differences in tax rates count as massive differences.

0:37:16 Thomas: I was gonna say, because it's one thing to say, like, sure, that's an element of freedom if you lived in a, a country where it was 98 taxes or something. Yeah, I would feel less free, I'd feel like there's nothing I could, yeah, I don't get to have any money. But the idea that there's this massive difference between the states, like, how much can the states really, I mean, it'll be a little bit, but they can't, their difference in in income tax, I can't imagine it being so much so that I would think, oh, you have no freedom. You're paying a couple thousand extra dollars a year, no freedom, I

0:37:51 Andrew: Yeah. And the differences are very, very small. That's a third. 40% is regulatory policy. These are things that I can promise you 99% of our listeners have never heard of, thought about. Can just they're basically, you know, do businesses get to opt out of, you know, so, for example, if there's a right to work law, if they can opt out of having unions, that counts for six percent licensing requirements counts for four point five percent.

0:38:07 Thomas: Don't know about you, but the Wharton Residential Land Use Regulatory Index is really how I measure my personal freedom, right? Right.

0:38:31 Andrew: Right. What was of real interest to me, if you scroll down a a little bit, you'll see that 3.7% for lawsuit freedom. And I thought, well, what does lawsuit freedom mean? And you have to actually click through to the print edition of their book, and they have, it's on pages 49 to 50, but essentially they define lawsuit freedom as A, ratings of lawsuit climate by businesses, previously the only variable used. And when When you look to the footnote, that is a ranking of the states by the U.S. Chamber of Commerce, which I should point out, the U.S. Chamber of Commerce is not an actual governmental body. It is a right wing pro business organization that,

0:38:42 Thomas: But it has chamber

0:39:15 Andrew: Right.

0:39:15 Thomas: And commerce in it. Well,

0:39:17 Andrew: Then the rest of it is partisan elections for the state Supreme Court and for trial courts, which is a terrible thing. And we can talk about that in a future episode and

0:39:26 Thomas: I think your dog is telling us we got to get out. We got to get out time to make the donuts. All right. See, I'm pulling out all my old references that maybe, yeah.

0:39:29 Andrew: Time to wrap it up. But so the the point is that four percent is essentially do businesses think they're not going to get sued in your state? Now, how that translates to personal freedom. I am at a loss. But, but so the net result of all of this is you have something that is very, very heavily weighted to traditional, not even what I would consider traditional libertarian arguments, traditional Republican talking points, 70% is low taxes and low regulation, and that's fine. And so when you look at the map, shockingly, the states that are in the top are all red states, and the states that are on the bottom are all blue states. You know, let's not pretend that Oklahoma is the hotbed of freedom in this country. Closed, I rest my case.

0:39:43 Thomas: Yeah. Yeah, right.

0:40:28 Thomas: Case closed. All right. Well, that episode closed as well. Uh, thank you so much for listening to Opening Arguments. Thank you so much, Andrew, for providing us with such insight every week. It really, I am, I just love this show so much. Uh, it's a show that if I weren't doing, I would still be listening to it because it's, I, I love it. I learn so much every day, so thanks for that. Uh, I'll forgive you for going to, same, the same shitty school as, as Ted Cruz went to. I'm sure it's a, it's garbage school, but that's another story. But, uh, thanks for, for listening so much, everyone, that time limit that we loosely enforce by going to patreon.com/law. What do you say?

0:42:21 Thomas: And now's where we gotta thank our top, top patrons, our sponsor-level patrons, uh, that is the Inciting Incident Podcast, Kaile Riser, Michael, Hunter Ash, Patrick, oh, there's another name I can't pronounce, Fus, Fusa, Fasel? I don't know. Amanda Lipnack, Desecratr, Roger Metcalf, Jim Grove, Steve Siegmund, uh anonymous, Dale, Dave Nichols of the Positively Doubtful Podcast, Eli Bosnick, whoever that is, Dan Irizarry. And that's it. Thank you guys so much for being our top patrons. And we'll see you next week.

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