OA49: Why Originalists Don't Belong on the Supreme Court

Transcript

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

0:01:16 Thomas: Hello and welcome to Opening Arguments. This is episode number 49. Always cool when we hit a square number there, and this is your square host, Thomas Smith, and your unsquare host, Andrew Torrez. How you doing, Andrew?

0:01:32 Andrew: I could not be happier.

0:01:36 Thomas: Yeah, Andrew found like a Commodore 64 lying around that he finally could use to record audio, and It's not having all the audio hiccups that were giving us fits. So, uh, oh, speaking of uh audio fits, uh, it, last week we posted the Law'd Awful Movies number four, and and if you're not sure what that's about, uh, check out the firm, if you haven't already, in the main feed. That was a Law'd Awful Movies we released to everybody, but normally what we do is we do one a month for patrons only, and so if you pledge two dollars or more, you get access to that's usually a long recording, it probably gets you through the whole month just kind of off and on, and this was no different. The movie was Changing Lanes. We had my brother Sam, Sam, over from Comedy Shoe Shine on to make it funny. And it was great. It was an excellent pick. I'm going to give even another shout out to Charone Frankel for finding that movie for us. It was like the perfect legal movie to make fun of. So go

0:01:43 Andrew: I thought, Yeah,

0:02:33 Thomas: Check that out.

0:02:34 Andrew: Yeah. Changing Changing Lanes was atrocious as a movie. It's almost unwatchable, but it may be worse on the law. We discussed this on on Law'd Awful Movies. It may be worth it. It's worse on The Law than The Firm. It is. It's of the same category, but It's a less. Oh, you've got to see it. That's all I'll say.

0:02:50 Thomas: Yeah, it's great. All right, let's get to our first listener question of the day.

0:02:56 Clip: He who questions training, only trains himself at asking questions. What?

0:03:04 Thomas: Listener Jody asks us, I have a small legal matter that I can't afford a real lawyer for. What does Andrew think of using something like LegalZoom? It's the best thing ever and it fully replaces lawyers and Andrew is obsolete. I'm actually thinking of doing the show with LegalZoom. Like I can fill Andrew's shoes with like a form, like a pre-filled out form.

0:03:14 Andrew: Yeah. Jody. I. Yeah.

0:03:29 Andrew: I actually wrote a blog post on LegalZoom about a year ago that I will link in the show notes. And what I did was I took a very basic service, one that, as I say in the blog post, you can probably do yourself, you know, with a fair amount of confidence. It's not hard. It was organizing an LLC. And when I had finished going through LegalZoom with all of their sort of upsells and options and clicking off the ones that I thought an average person would decline, LegalZoom was going to bill me $1,200 to start my LLC.

0:04:07 Andrew: It was, you can track the journey that I took through. You can play around with it yourself. Just don't get to the point where you actually put in a credit card. That's like three times more. Yeah, well, because what they do is they make themselves the resident agents, so everything goes through that. They want to sell you on putting together an operating agreement, which, you know, you may not be required in your state. And if you have only one member of the LLC, you probably don't need an operating argument with

0:04:06 Thomas: Wow. How did they get up to $1,200?

0:04:35 Thomas: Yeah, you don't, an operating agreement

0:04:37 Andrew: Yourself.

0:04:37 Thomas: With yourself. Yeah.

0:04:38 Andrew: So we were at literally like three to five times what hiring a quality lawyer would cost you. And the worst part is you have to you still have to fill out all the forms yourself. Right. Like they're, they're basically taking prepackaged forms, making you answer the questions, and then charging you a ton of money for it. I mean, you can hear it in my voice. I really feel passionately about this.

We know one of the reasons that I left sort of the big firm environment is this kind of mismatch right now in the law where people like me get funneled into big law firms at exorbitant rates such that only Fortune and 500 companies can afford us, and everybody else is kind of left either scrambling or using legal zoom or, you know, how many of, how manyofour listeners, go ahead, put your hands up, we can't see you, but but we know this happens, like download a form off the internet and you know, well, I need a contract, so I'll just go searching for, uh, you know, landlord contract, and download it off the internet and change a couple of terms, and uh, no, I have no idea what paragraph 47 on that means, but, but, you know, it was on the internet, and how good, you know, how bad

0:04:49 Thomas: Yeah. Mm-hmm.

0:05:52 Andrew: Can it be? Right. Part of why I did this was to if please do not use legal. I would say let me say it this way. How about for I don't know, for the next like for 10 people, if you email me, if you're thinking about using legal zoom for a standard task, right? Like forming an LLC or reviewing a contract, something that would take a couple of hours of lawyer time. And you're nervous about that. Email me PA Torres at PA Torres.com, uh, put like legal zoom or something in the title. Uh, and, and you know, for the next, I know, uh for this month, for this, for, for the next 10, 10 listeners, whatever, if you're going to do that, uh I will, I will charge you a half hour of my discounted rate, right? I will charge you 200 bucks for that task.

0:06:37 Andrew: I would rather have you do that. I mean, I can't say I'll do this forever, but I mean I would really rather put in three or four hours, charge you a half an hour, than see people go off and do something in a box and just kind of wind up in that spot.

0:06:52 Thomas: Yeah. Cause when it's all told you end up paying, it sounds like, well, okay. First off sounds like we're giving up legal zoom as a potential sponsor ever. Uh, so that's, that's that. So legal Zoom will never be a sponsor of this show. So, because Andrew would have to completely change his tone and he'd lose all credibility. One day it would just be like, "Oh, you know, I was right. They had a new feature now and now they're great, they, they fixed a button that

0:07:03 Andrew: Yeah.

0:07:16 Andrew: They have this new feature where they They actually give you advice and don't require you to do it all yourself.

0:07:17 Thomas: Yeah. Yeah. So But I think it's, it sounds like it's a real half measure, like it, something that kind of helps you get like a little bit of the paperwork correct, except you still do it all yourself and end up paying sometimes even more than just a normal lawyer and having someone, the great thing about a lawyer, and just any, I would say this about any professional, when you actually talk to a person, is like, they'll oftentimes they'll just answer a lot of your questions and stuff that you don't realize is a real value, but they kind of just do it because they're already working for you anyway, you know?

And so I would encourage people take advantage of this deal that Andrew's offering because it sounds like LegalZoom is not a good way to do this and have the peace of mind to know if you need a contract or if you needs some sort of whatever it is filed that someone is doing it actually tailored to you specifically, and they're not just giving you a form and then having you still mail it and do all the, or fill it out and do all the back crap.

0:07:20 Andrew: Yeah. Yeah. Yeah. Thank you.

0:08:17 Thomas: Hey, no problem. I think that if there's anything that Andrew Torrez deserves on this show for all his hours and hours of expertise he's giving us, it would be for him to talk shit on LegalZoom for it not being a solution to problems. So PA Torres at PA Torres.com, right? Hey, take advantage. You guys, maybe you're, you, you, probably, yeah, maybe I'll take advantage of this. Maybe I'm going to file another.

0:08:38 Andrew: Yeah. Yeah. Well, you, you have on a couple of things, right?

0:08:46 Thomas: I know I totally have. And that's the thing. Like if, that wouldn't be true. If it turned out that LegalZoom actually were the better way to do it, Andrew would have told me personally, like, nah, don't use me. But, uh. But no, I use Andrew as well. Great lawyer. All right. Commercial commercial over uh unless there's anything else we need to cover in that question worthwhile okay Alright, Andrew. It's time to get to our main topic of the day. Pretty excited about this one. You have talked from time to time about originalism, we've covered it here and there, you've given your take on Scalia a number of times, spoiler alert to anyone who doesn't know, any new listeners maybe not a fan not a fann, yeah, yeah, and you've convinced me, I'm not a fan as well.

I mean, I, it didn't take much, but, but you've convinced me. But there is much there, by the way, there's a lot of good reason to not have been a Scalia fan. But, but anyway, so this, what we wanted to talk about today, though, is maybe covering just originalism in itself, I think. Is that right? Because you've covered it here and there as regards different decisions and as it was made manifest in Scalia's decisions. But today you wanted to talked about just what is originalism, right?

0:09:04 Andrew: No, no, no. No, Not, not a fan. Right.

0:10:03 Andrew: And, and in particular, I have taken the position that I think any, uh would-be Supreme Court justice who describes their judicial philosophy as originalist or textualist is not qualified to serve on the Supreme Court, and not unqualified because of a lack of intellectual temperament, but unqualified, because that view is not consistent with the Constitution. And the analogy I've made elsewhere is, you know, if you were a Marxist, or, you You know, I took a class called Critical Legal Studies that was about radical deconstruction of the law with a professor named Duncan Kennedy, who's brilliant. He's much smarter than I am. But his legal philosophy is essentially that, you know, the law has no fixed meaning and reflects, you know, sort of a Richard Rorty, Michel Foucault type power struggle.

0:10:53 Andrew: Like, it's super interesting. If he were on the Supreme Court, I'm sure I would agree with ninety nine percent of his opinions. Opinions, he doesn't belong in the Supreme Court because his judicial philosophy is not consistent with the Constitution. And, you know, we have defended on this show what I consider, and what even, I mean, we had a self-described textualist in Seth Barrett Tillman come on the show. And you know he conceded that this is by far the majority view of jurisprudence is, you know, sort of what I would call the ordinary stare decisis model that says judges are bound by prior precedent, and they look to previous cases to form the boundaries in how particular constitutional provisions are to be interpreted. And, you know, last—go ahead.

0:11:39 Thomas: Let me challenge you a little bit on this, though. Because I think that some people, I even liberals might ask this question. And I can imagine any conservatives listening would certainly probably ask this question. Is it unfair to call it disqualifying because it's not the majority view? If I were to just do some simplistic math and say like, well, what kind of percentage are we talking about? Is it 10 percent? Is it whatever? There's nine justices, right? I mean, couldn't there be one or two or however many that represent that sort of school of jurisprudence? Is it unreasonable to have even one or two that are that? Why is it so bad that it's disqualifying?

0:11:41 Andrew: Sure. Yeah, No, I think that's an awesome question, because we tend to think of seats on the Supreme Court as occupying the left-right spectrum, because everything is politicized these days. You know, this was not the case as recently as as 25 years ago. Right. I mean, David Souter was a George H.W. Bush appointee. He was widely considered to be sort of conservative in temperament and had a history of reaching some conservative outcomes when he was in.

I believe he was he was either on the First Circuit or on the New Hampshire Supreme Court, and possibly both. We tend to think of it like that. So you tend to think, well, OK, you know, what does it hurt to have an originalist on the court? Right. Like, you know, like, what is it hurt for conservatives on the quarter? The argument that it is a minority position is not shorthand for, and the majority ought to win.

It is, is rather the overwhelming majority of people who are lawyers, who think about jurisprudence and go to school and study the Constitution, have come away, in my view, correctly with the idea that the way in which jurisprrudence is to be done, the way in which case law is to to be interpreted, is through the ordinary model that I've described, and not through this sort of competing model of originalism, for a number of reasons. And I kind of give you sort of the shorthand.

I've given a lot of shorthAND kind of public policy arguments. The fundamental underlying reasons are, number one, that originalism is internally contradictory. It says we want to look to the intent of the framers in deciding what constitutional provisions mean.

0:14:06 Andrew: And when you look to what those framers themselves said, you will find that they did not want anything like originalism. Right so it

0:14:14 Thomas: Really? So So do we want to get into that evidence yet, or do you want to save that for later? But I guess my question would be, what is the evidence that the founders would have been against originalism? But it's up to you when we want TO tackle that.

0:14:28 Andrew: This is instructive. Like Thomas, if I if I asked you to define originalism, how would you do that? Like, what is it?

0:14:34 Thomas: Right. Well based on, I listened to the show called Opening Arguments. I don't know if you've heard of it, but I've learned quite a bit bit about the law. I'm doing okay on the bar exam. Not doing great. We'll find out how good I'm doing today, I guess. But I would say that the overall thing is you're using what you think the founders intended with the language of the Constitution. And it seems to, in general, minimize the importance of jurisprudence throughout the years. So you think that that any evidence of the founders is far more, and what the founders thought is far more instructive than, say, a case from 1870 and then 1910 and then 1950 and pretty much the closer to now things get, the less important they are when using an originalist philosophy. How close am I?

0:15:29 Andrew: Yeah, I think that's... I think that's a great summary. Originalists, like when we had Seth Barrett Tillman on, they tend to appropriate for themselves the label of textualist. And their argument there is that jurisprudence is based on the text of that provision of the Constitution or the law in question. And so the additional sort of corollary that I would, I would put on that, as they would say, if what you do is you look at the words of a particular provision in the Constitution and you try and figure out what those words mean, and would you, would, would look first to, do they have an ordinary agreed-upon dictionary definition? And then secondly, do they have a specialized definition that was given to them by the founding fathers, by the framers, by whoever wrote it.

0:16:16 Andrew: And so, you know, those two things sort of coexist, we folk, we tend to focus on the latter. But the dictionary definition also leads, in my view, to some sort of absurd results and is kind of equally not what the founders intended. But I realize that I've been sort of giving a shorthand for why originalism leads to some absurd results, right? So for example, like we've talked about the Eighth Amendment, which forbids cruel and unusual punishment. And is a Scalia opinion that says, well, it forbids cruel and unusual punishment. And via the ordinary meaning of those words, if a punishment is cruel but usual or unusual but not particularly cruel, then it would not be excluded.

0:17:07 Andrew: And the way then in which we would further parse that of the Eighth Amendment, according to Scalia, is to look at the kinds of punishments that were prohibited by the government in the 18th century, right, in 1791. And if you look at that, you wind up with a position that no human being could possibly defend. Right. Like public whippings, floggings, pillories, putting people in the stocks. And in fact, it was Nina Totenberg who asked Scalia in a 2008 interview if under his view of the Eighth Amendment, it would be permitted to put people back in the stacks. And since Scalia was already on the Supreme Court and not going through a nomination process, this was his answer.

0:17:55 Andrew: I want to read it and get this exactly right. So, quote, I would say that that may be very stupid, he told Nina Totenberg, quote. But it is not unconstitutional if indeed it was a punishment that was at the time accepted, end of quote. And so I have said this elsewhere. I think during the Gorsuch nomination fight, hope we have staffers or members of the Senate Judiciary Committee who listen to the show. They should ask Neil Gorsuche what he thinks the Eighth Amendment means. They should read this quote in from Antonin Scalia and force him to either agree with it or repudiate it. Now, Supreme Court justices lie in their confirmation hearings. But nevertheless, you know, it should be a part of the public debate, because there is no way to be an originalist and not come away with the conclusion that it's perfectly fine to have public floggings and put people in the stocks.

0:18:46 Andrew: Now, that's a good public policy argument. But of one the reasons I wanted to do this show is I could very well imagine if Scalia were here, or Professor Tillman were back on, saying, look, that is not a complete argument. Right. Like, suppose that's what the Constitution means. Right. Suppose the Constitution doesn't prohibit flogging. Suppose it doesn't prevent breaking on the wheel, like you may wish it did. But that doesn't prove that that's how we ought to interpret the Constitution. Right, just because you reach an outcome you don't want. So I wanted to explain why I think originalism is intellectually bankrupt, as well as what I would describe as morally bankrupt, bankrupt.

0:19:27 Thomas: Yeah, I do remember Seth Tillman using that argument a couple times where it's like, well, I know you all want the Emoluments Clause to apply to presidents, but if it doesn't, that's not an argument that, you know, we should interpret things differently just because it doesn'T reach the conclusion that we all kind of want. So, I think that's a good guess as to how they might respond to what you just said.

0:19:43 Andrew: Yep. Well. And it and. That. Plays. Into the general, like, conservative liberal argument to begin with. Right. So I want to, I wantto fight them on their terms. Right. So let's, so let's do that. I've already kind of flagged that first argument that I think that this is internally contradictory, um, and, and by that I mean, if you're, if you prioritize the writings of the founding fathers in interpreting provisions of the Constitution, then when you turn to those very writings, you will not find the founding fathers saying, our words are what govern what these provisions mean. Right? So we turn, for example, to the Federalist Papers, right, like the Federalists Papers were written by the founders to argue in favor of ratifying the Constitution, which includes Article 3, which sets forth the judiciary and the powers of the Supreme Court.

0:20:38 Andrew: And in Federalist 78, that's the first paper that deals with the judiciary. Here's what Alexander Hamilton says. He says, the complete independence of the courts of justice is essential in a limited constitution. By a limited Constitution, I understand one which contains specified exceptions to the legislative authority, such as no ex post facto laws. Right. And this is the critical part. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the, quote, manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. So that looks pretty solidly like the argument that I've been making, right? And in fact, it's part of why I make the argument that I do, right.

0:21:31 Andrew: Hamilton says, look, the way in which we have an independent judiciary that provides a check on the legislative is that the judiciary looks at laws and says, are these laws consistent with the tenor of the Constitution? And if you want to go so textualist, right, I've made this point before, the Constitution, by and large, contains very few provisions that are specific and clear in their application, right? It contains the Third Amendment about quartering soldiers, and we've talked about that. But by and larger contains terms like in the Fifth Amendment, no person shall be deprived of life, liberty, or property without due process of law, right. Right. And so, you know, as I've asked rhetorically before, like, you know, what's a liberty? How do you get deprived of it? What's a process? How much of it are you do? Right.

0:21:31 Thomas: I

0:22:16 Andrew: And and you see from Hamilton's writings here that that creates a, quote, tenor to the Constitution or a manifest tenor of the Constitution.

0:22:24 Thomas: Was going to ask, I thought

0:22:25 Andrew: Yeah, go ahead.

0:22:26 Thomas: You were going to say, let's do a dictionary definition. What is the, what is a tenor of the Constitution, let's get all textual on it. You

0:22:32 Andrew: Right, right. Yeah. Well, and and let me explain. You might say, OK, well, you know, Andrew, you're doing the same thing that the that the originalists do. You've pulled out one quote from Hamilton. Well, let's go a little further in that same Federalist 78. Hamilton says, a constitution is, in fact, and must be regarded by the judges as a fundamental law. It therefore belongs to them, that is the judges, to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the The superior obligation and validity ought to be preferred. In other words, the Constitution ought to be preferred against the statute and the intention of the people to the intentionof their agents. And I think that last part is really significant because that's who the founders are, right?

0:23:24 Andrew: Those are the agents of the people. And so when we hear various originalists say, well, you know, we want a prize. You know, what did George Washington do in this situation? What did the founders describe in this particular situation? Hamilton says, no, no. No, we want the exact opposite, right? We want the general spirit of the will of the people as embodied in the constitution, uh, to, to take precedence over, uh, what we say. Cause you know, we're just agents of the People. Um, so I, it, I think that's pretty clear. Uh, but you, but, you might say, well, you know like this is sort of flowery language that the, the, that the further argument I would give on the, uh contradiction is when When you look to the decisions that the Supreme Court made in the first 30 years of the republic while the framers were still alive, right, you don't see anything like what you would see if there was an understanding at the time that the framer's intent was what ruled, right?

0:24:23 Andrew: So, for example, we've talked obliquely about Marbury v. Madison. That's the 1804 Supreme Court decision that established the right of judicial review. The Supreme Court refused to issue a writ of mandamus appointing Marbury as a judge, as a justice of the peace, actually, and instead said it is our obligation to declare laws void when they run contrary to the Constitution. It's the first time the Supreme Court did that. And in that opinion, you will not find a single reference to the intent of the framers in drafting Article 3, right? What you will find is a lengthy discussion of the purpose of Article 3 and the point of an independent judiciary. In other words, you will find precisely the manifest tenor of the Constitution.

0:25:12 Andrew: You will find the idea that these words establish principles that then it is left for the judiciary to interpret and apply going forward. Word. Um, so I, I think you put all of that together and I don't know what the counterargument to that would be, right? Like if you say we care about what the framers did, we care about, uh, what the founding fathers wanted to do. Um. You can look at their writings and you can look the people who knew them, uh. Who served on the Supreme Court. And neither of them did what people like Scalia and Gorsuch say they should have been doing if indeed originalism is the right way to view the Constitution. Yeah.

0:25:52 Thomas: Know, the only thing I can think of, that's a, this might be a little bit of an abstract question, so apologies, but, but could you also say that in some ways your version of, or in the mainstream version of jurisprudence, could be contradictory? Because if, like, if enough justices took the originalism view and started ruling in that way, would that become mainstream jurisprudence because it's in the jurisprrudence? Like, you would start looking at those originalist decisions and decide, oh, people have over time to start using an originalist method of interpreting the law. Therefore, we ought to go with that precedent. Incident could it Could then your, could your version be rendered kind of self-contradictory as well? Yeah.

0:26:37 Andrew: No, no, Yeah. Well, absolutely it could be rendered, um, you could do an end run around the traditional method of jurisprudence, um, by doing exactly that. That's why it is critical that the Senate do its duty and keep people with an originalist philosophy off of the courts. Yeah, right. Like, in our, in our, uh, discussion last, last week, of the, of the Fourth Circuit handgun ban case, right? Like we described kind of precisely that difficulty that you face if you are a believer in the mainstream view of jurisprudence, because you're stuck with D.C. versus Heller as binding Supreme Court precedent.

And you can look at it and go, gosh, this is bad. We're going to do a future episode on, you know, sort of truly atrocious Supreme Court decisions. Um, but, uh, but you know my, my old, um, uh my old boss, uh Judge Radowski on the Maryland Court of Appeals, uh I asked him, he, he never wrote dissents in cases and I asked what it took for him to write a dissent and he said, if I can taste the bile in the back of my throat when I, when I read the majority's opinion Then I might dissent, but not before that.

And, you know, that's true to a much greater degree when you're talking about wanting to just disregard precedent, right, to say, you know, like we did in Brown versus Board of Education, no, I'm sorry, Plessy v. Ferguson was wrongly decided. It really takes kind of a monumental shift to go, yeah, that was just, that I was just wrong.

0:28:13 Andrew: And, and I don't think, right, as you look at, at D.C. versus Heller, which is the 2008 Scalia authored opinion that found a broad sweeping individual rights view of the Second Amendment. And a real tension for somebody that has the mainstream view of jurisprudence to look at it and go, yeah, that seems wrongly decided. But like, am I overstepping my bounds as a judge, on the, as a justice on the Supreme Court, to say I'm going to go back and overrule a case from 2008? Right. Right. Like, so, so, yes. Look, like, that's why this philosophy was designed. It was deliberately crafted by Robert Bork in the 1970s to do this and run to, to, to, if you have enough justices following this philosophy, then you will wind up with these kind of crazy activist opinions.

0:29:05 Andrew: And then it doesn't matter, right? Like, now you've gotten your foothold in the door and now you have two ways to win, right? Like you can win either by maintaining an originalist majority on the court that doesn't care about precedent, or by having a majority that abides by precedent. But you've now, you know, sort of littered the landscape with these terrible precedents. Um, so, so I, I agree that that's a, that that's a problem, but, but um, I think that that's designed feature of originalism to kind of, you know, serve as a, as a virus in that way, if you will. Um, it.

0:29:39 Andrew: It, think dovetails sort of nicely with, what um I would describe as the, the second main argument against originalism, uh, as judicial philosophy and the reason why it must be kept off the court. And that is originalism really tears down the checks and balances that are meant to be on the powers of the judiciary. Right. So what do I mean by that? If you are obligated to follow past precedent, that sets limits, positive and negative, as to what you can do. Right? Right. Can you push the boundaries of those limits? Absolutely. Right. So like we looked at the again to kind of go back to the recent Fourth Circuit opinion on on Maryland assault weapons ban.

0:29:39 Thomas: That makes sense.

0:30:26 Andrew: They said, look, D.C. versus Heller sets forth a broad individual right to keep and bear arms. But by its own terms, it does not apply to weapons of war. Right? Right. So that means anything that that we think that we're going to uphold as not implicating the Second Amendment is consistent with Heller. If in turn, those things are weapons of war. Right.

So it it provided I mean, that was a way to distinguish Heller, but but you still you couldn't just say, well, we know Heller says that it's weapons of War. These are not weapons of work, but nevertheless, you know, we want to ban them anyway, like that the court had to go through. They were constrained in the power of the outcome that they could reach, regardless of how prudent they thought the law was because of the prior cases. What that's, Right. What precedent does is it says we've set forth markers, right? Right.

So if if Maryland had, for example, banned handguns, one of the one of the things Maryland did ban in the early 1990s was so-called Saturday night specials, which were super cheap handgunS. And there was thought to be a strong public policy reason for doing that, which was that they were inaccurate. They were like flooding the street. So, you know, they they weren't safe. And, you know, there was sort of all of these public policy reasons against it. You could not have reached the result that the Fourth Circuit reached under a Saturday night special ban. Right. Because cheap handguns are not at all analogous to weapons of war.

0:31:58 Andrew: Right? They just aren't. So in light of Heller, you would not have been able to reach that outcome of the prior cases. So, so provides a real check against the judges sort of doing whatever the hell they want. When, right, your touchstone is what did the founding fathers think in 1789? There's almost nothing that serves as a bulwark against, know, using the founding father's as a ventriloquist on me because historical records of that are incredibly sparse. And part of the reason they're sparse is that was that first argument, right? Like that we, you don't have the words of the founders preserved in jurisprudence in early Supreme Court cases because they didn't think that was dispositive. And so because of that, I mean, you might remember Tillman coming on and saying with respect to the emoluments clause, like, yes, I'd like to have a larger discussion about historians here, right, like what lawyers aren't Historians, right.

Right. The, the, the, the reason you want to do that is because, you know, you are searching for these, you know, tiny little signposts. And if, and if what you're doing is searching for something that you expect the record to be thin, that provides very little constraint on the outcome that you can reach as a judge. Right. So, have sort of the more mainstream view. Right. So let's go back to the Eighth Amendment for an example. If we say that the Eightھ Amendment is meant to protect against cruel and unusual punishment, and cruel and usual punishment is meant to have, a, as Hamilton would put it, manifest tenor. Right? What it means is, yeah, like you can't torture people. You can't do horrible stuff to them.

0:32:53 Thomas: Yeah.

0:33:39 Andrew: Right. And it's meant to embody the idea that, yeah, like we might not have fully thought through what constitutes horrible stuff right now. But over time, like the guiding principle is not what was banned at the time that this amendment was passed. The guiding principle Is, is this punishment horrible? Is it torture? Does it shock the conscience? Is it, you know, whatever kind of moral synonym you would put for cruel and unusual punishment? And then, you know, you might you might add you might look to, for example, social science research or international law or other pieces of secondary evidence. Right.

Like so, for example, whenever there is a case arguing that capital punishment violates the Eighth Amendment's cruel and unusual punishment clause, those cases inevitably point out that virtually every industrialized society on Earth has prohibited capital punishment with the exception of the United States. Right. Like that's not to say that their law is dispositive of our law. Right. It isn't. It's to say that this helps us understand. Right? Like you're saying we're applying a principle. You can already hear the originalist going, oh, that just means the judges can make up whatever they want. And they would say, no, no. We're not making up whatever we want. We are looking to, you how do we understand what this principle means today?

0:34:37 Thomas: Oh.

0:35:01 Thomas: I was thinking about this Eighth Amendment thing, and I was juste thinking, let me know if this might be a good counterargument, but it, the, the idea that it, it, it hinges on what was in use in 1791, so would, would Scalia say, so we have him on record here as saying that the stocks would be constitutional.

0:35:22 Andrew: Right.

0:35:22 Thomas: But even if he's saying, oh, it would be, you know, that would be a stupid punishment. Would he be committed to saying that if there were some 21st century thing that we invented that pretty much does exactly the same thing as stocks, but wasn't around at that time, that that would actually be unconstitutional, just because, even though it's still cruel, like he would agree that it's, because his reasoning is, sure it's cruel, but it wasn't unusual, correct?

0:35:50 Andrew: Yes.

0:35:51 Thomas: So if we invented, I don't know, digital stocks, some equivalent of that, which is some new technology or something, let's say it's some new mental stocks, like it just, we're able to tap into your brain with a computer and it just holds you in that position in the same way. Would then that be unconstitutional merely because that wasn't around at the time? But so therefore it fits the test as cruel and unusual.

0:36:15 Andrew: Yeah. And, and, and typically, um, you know, I mean, that'S a, that's a great, that'' s a hilarious example, but I mean think about it comes out when you' re talking about first amendment cases, right? Like there, there There weren't blogs, there weren't podcasts in 1787. So, you know, does freedom of speech for an originalist, you know, only apply to printed newspapers? And typically what they will say is, well, when you have advances in technology, you use the principles articulated by the founders at the time and kind of apply it forward. So, again, Well,

0:36:31 Thomas: Right. But I think you can't possibly do that if you're reasoning on this eighth amendment question, because if your reasoning is it's only what was unusual at the time, you're stuck in time. Like you're, you I don't know how he could possibly do this.

0:37:07 Andrew: Think that's an excellent point, because ordinarily you would say that the question is, well, what would the founders consider cruel and unusual, and we can look to the punishments they permitted, uh, as obviously not fitting within that, right? Like that's the argument against the death penalty being prohibited by the Eighth Amendment. It says, look, it says right in the Constitution, right in the Eighth Amendment, no, no person may be twice put in jeopardy of life or limb. Right. So you can't put somebody in jeopardy of life if you don't have capital punishment. They thought capital punishment was fine. Therefore, it's not cruel and unusual. Usual, um, the way in which originalists typically get around the time problem is to say, well, what would they consider, but, but you're absolutely right that I've never thought about this, that for something to be unusual requires you to look at contemporary practice, right? Like that's, that's the dictionary definition of what constitutes, like, by definition, every time you, you come up with a new punishment, right? It's unusual.

0:38:08 Thomas: Would be unusual.

0:38:09 Andrew: Right. So, um, so yeah, like I, I think that's a, that's great point in terms of, uh, how you're stuck because of the unique quality of that word. And I think it, it sort of further goes to serve, um, the larger point that I'm making here, which is that's not, that absurdity shows that we should not be reading the Eighth Amendment as prohibiting cruel and unusual punishment, each of the words defined individually, like if I said I want a hot dog, like you wouldn't set my puppy on fire, right? Like we know what a hotdog

0:38:09 Thomas: Yeah. Yeah. Yeah. Yeah. Or like

0:38:40 Andrew: Is, right?

0:38:40 Thomas: We shouldn't be reading it like a programmer, like like it's like cruel, like and parentheses, cruel, comma, unusual. Like it has to be both of those, you know. Exactly.

0:38:43 Andrew: Right. Yeah. It, yeah.

0:38:50 Thomas: I just such an idiotic way. And actually, that example is, I think, the first thing you used when you were kind of teaching me about this originalist perspective. And what was the case he was talking about when he made that that that ruling? I can't remember.

0:39:01 Andrew: Let The original case, uh, that, uh, Scalia just tossed to the curb, was a case called Solemn versus Helm, uh, and in in that case, the Supreme Court set forth what was then called the proportionality doctrine, that basically said a punishment violates this manifest tenor of the Constitution, is cruel and unusual, if it's grossly disproportionate to the offense that was committed. Right. And in this case, we were talking about states that had three strikes in your outlaws. Right. So, yeah, You committed, you committed two felonies, and your third felony, felony, uh, that's it, strike three, you're out, and um, they would lock you up, life imprisonment without possibility of parole, um, And, and the Supreme Court said, uh, the Solemn versus Helm involved, um, the crime of passing a bad check, um, it was like a $500 bad check, so it was a felony, it was the guy's third felony, and he was gonna be locked up for life, and the Supreme Court said, quite sensibly, um, if cruel and unusual means anything, right, it certainly means putting somebody away for 50 years for writing a bad check, like,

0:39:39 Thomas: Right. Right. Yeah. Yeah, that's

0:40:15 Andrew: Come on, right?

0:40:16 Thomas: Like Les Miserables level punishment.

0:40:16 Andrew: Yeah. Literally, uh, seven years later, it was eight years when the decision came up, but seven years, uh, when Scalia heard a similar case called Harmelin versus Michigan, uh, that, that involved, think it was a nonviolent drug crime, but it was, it was the exact same principle. Right. Three strikes and you're outlaws.

0:40:35 Thomas: Which is curious that it even got back to the Supreme Court. Like how was it just a case of Scalia or something? You know, there's enough right wing presence on the court that they wanted to, you know, reexamine it.

0:40:38 Andrew: Yeah. Yeah, right. Remember that it only takes four votes for cert. So judges will look and we'll and we will take a case and say, oh, yeah, no, I'd I'd like to take this case, even though it's sort of squarely up against existing precedent, because I'd Like to overrule that existing precedent. And he succeeded in this case. So same principle, mandatory minimum sentence for a nonviolent crime on the third offense. And Scalia just said, in my view, Solem versus Helm doesn't count because what what what matters is what did the founders think cruel and unusual punishment meant in 1791. And this is where he uttered the famous phrase. Severe mandatory minimum penalties for nonviolent offenses may indeed be cruel, quote, but they are not unusual in the constitutional sense, having been employed in various forms throughout our nation's history. Right. Right. So you can see. Right. It also answers your question. They did not have a three strikes in your outlaw in 1791. So he says sort of not not just was this punishment unusual, but like were punishments like this unusual at the time?

0:40:50 Thomas: Yeah. OK. Mm hmm.

0:41:54 Andrew: And he's like, no, like, yeah, in 1791, like you could be sentenced to jail till the cows come home for all sorts of nonviolent offenses. So therefore, the Eighth Amendment means effectively nothing. Right? Right. Like in light of absent. Right. If you take away the proportionality doctrine and you take away the the prohibition on capital punishment, then it's not clear to me what's left that the Eighth Amendment prohibits other than.

0:42:04 Thomas: Yeah. Yeah.

0:42:19 Thomas: By his logic, I mean, is there nothing to stop someone, so if let's say a certain, I don't know what level of government would do this, but whatever it is, a municipality of some kind decides they want to punish shoplifting by life in prison, there is there nothing, nothing stops that, right? Like literally nothing stops at in Scalia's mind, which

0:42:20 Andrew: Yeah, correct. Yes, absolutely correct. And in the look, if if this Supreme Court were to invalidate that law, as I think they would, they would have to negotiate around Harmelin versus Michigan, right? Like they would have to, to acknowledge this.

0:42:55 Thomas: Is the Scalia one, or there was that the original one Scalia one Okay, I

0:42:56 Andrew: Yeah, that's the Scalia one, right. They would, they would have to say, well, you know, notwithstanding our result in Harmelin versus Michigan this violates the Eighth Amendment because, and it would, you know, it would it would require some tap dancing, or it would require them to, you know, have a Brown versus Board of Education moment and overturn it.

0:43:14 Thomas: Was gonna say I really think in the case of Scalia, there ought to be the a that emergency hit the hit the emergency exit yeah but

0:43:20 Andrew: You ought to be able to take a mulligan right, yeah, on on all of his opinion, but but but that's right, like, um, you know, that that that's a part of our jurisprudence now, and it's something that that contemporary justices have to deal with, and you know, it by filling both prongs, right? Like, look, if the state can kill you, right, in order to meet the cruelty prong, you now have to argue that the the punishment is worse than death, right? And look, I could imagine some punishments, I can imagine some punishments being proposed by this administration, you know, that might necessarily, that might meet that criteria,

0:43:24 Thomas: There's no

0:43:56 Andrew: Yeah, right,

0:43:56 Thomas: Way, that's what they they intended with the, you know, like, there's no way this would be the intent of this cruel punishment clause.

0:44:04 Andrew: To be, to be essentially meaningless. I agree. And that, and that really gets into the third argument, the last argument that, that I'm going to to make on this episode. And that is, when we look to the founding fathers, again, because I'm trying to conduct most of this debate not on, it's a bad thing to render the Eighth Amendment meaningless, but would the founding father's want us to render The Eighth amendment meaningless, right? And to the contrary, you find in the writings of our founding fathers a profound sympathy for the plights of minorities. Now, let me be very, very clear here. They were thinking of minorities as one group of white male property holders and majorities being another group of white male property owners. And whether that that was going to break down on religious lines or political lines or whatever, like you don't find, I do not want to whitewash our nation's history. You do not find sympathy for women and, persons and of color and what we think think of as minorities today, but you do find tremendous sympathy for political minorities, which are not difficult to apply in the same way, right?

So for example, going back to the Federalist Papers, in Federalist Paper number 10, this was written by Madison, who later became president, right, so again you would think this ought to have some merit to originalists. When When he was describing the purpose of the Constitution in the first place, here's how he described the purpose of having a Constitution. He said,

0:44:48 Thomas: Yeah. No,

0:45:59 Andrew: Overbearing majority. And so you find the structure proposed in the Federalist Papers adopted in Article 3. Like, there's a reason why Supreme Court justices are given life tenure, why they are appointed and not elected, right? Because the idea was to shield the judiciary from political pressures, to have it be an apolitical body. And not just to have it be in a political body, like because, you know, they were contemplating Democrats or Republicans. We know they weren't right. Like in his farewell address, George Washington famously warned against establishing permanent political parties, which, you know, nice if idealistic advice.

0:46:38 Andrew: They weren't thinking about political parties. They were thinking about like a political body is a bad thing. Were they thinking? The political bodies, right? The Congress was responsive to the needs of the majority. And so they wanted to put in checks to make sure there were branches of government that were responsive to the needs of the minority. And that's what, that's clear beyond a shadow of a doubt. And I would, I would debate any originalist, you know, wants to come on the show to discuss this principle. It is clear beyond a shadow of a doubt that's the original intent of the judiciary is to protect against the majority just doing whatever they want in the legislature. That's why we enshrine these principles in the Constitution and particularly in the Bill of Rights.

0:46:38 Thomas: If only.

0:47:27 Andrew: And that itself, you know, has a rich history in our law. So, for example, for example, all the lawyers who are listening will know the case of United States v. Carolene Products. This is 304 U.S. 144. It's a 1938 decision, right? So it's 80 years old, at this time, right. And footnote four of that decision, but called the most famous footnote in jurisprudence, right, says that the primary purpose of the court is to protect against, quote, "prejudice against discrete and insular minorities. That may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." Right.

That footnote provided kind of the, the roadmap to all of the subsequent opinions that we rely upon today that incorporate the Bill of Rights to the state and vindicate the rights of individuals, particularly the rights of minorities against the government to say, hey, look, if you are a discrete and insular minority, that is, if you are African Americans in this country, you may never be able, you may be permanently disenfranchised in the sense that you may never obtain majority status for your group. And it may be easier for, you know, 80 percent of the country to enact conditions on a 20 percent insular minority. And that's contrary to the Constitution, and that's the job that the courts are meant to protect.

0:49:03 Andrew: They were meant to be the bulwark against a majority oppressing a minority. And so, you know, all of these originalist decisions, the net effect have been to roll back the rights of individuals, particularly the rights of individuals who fall into these, you know, discrete and insular minorities. And, you know, if you think about it, right, like if the, if the touchstone is, what was prohibited? What did the founding fathers want to do at the time, right? Like, well, 1791 was not a good time to be a discrete and an insular minority in this country, right. You are putting your thumb, uh, you're putting your entire body and a, you know, lead weight on the side of the scale, uh, in favor of entrenching the rights of majorities and it's just you know, yeah.

0:49:34 Thomas: Yeah. Yeah, I'd be curious to ask an originalist if they think that this doesn't hinder moral progress. And first, if they, first, I would want to ask, like, you think we are capable of making moral progress, right, as a species? And if so, how in the world are we ever to do that legally, to, like, adjust our legal instruments to keep up with moral progress, if we're bound by whatever these old dead guys from the 1790s exactly meant with all their words?

0:50:22 Andrew: Well, I think they would, I think they would dispute that premise, right? Like, I, I think, uh, so number one, you have a strong overlap with, uh, religious conservatives who, there's no such thing as moral progress, right? Like, there is a a, a uniform and invariant moral law that never changes, um, well, you asked, yes, the argument I'm trying to give it, um, and and then secondarily I think they would say, and to the extent that it does change and it becomes a consensus, then, you know, let's go to the legislature to make that happen, let's not go to unelected judges who are just going to say what they think our moral consensus is, right? Like, that's their, that's leurgument And, and the response back to that is the whole point yeah,

0:50:32 Thomas: Yeah. Which is insane, of course. Yeah. Yeah. Well, it wouldn't work in every case.

0:51:03 Thomas: Like, I get that it would work in some cases you could legislate kind of on top of the Constitution, but if moral progress ever contradicted what someone thinks the founders meant, then you could never beat that, right?

0:51:19 Andrew: I forget who it was that said, um, the First Amendment, he said, he's, it might have been Frederick Schauer, but he said the First Amendment protects deeply unpopular speech. Indeed, that's the only speech for which it is necessary, right? Popular speech needs no protection, right? Right. And, and I would extend that aphorism to all of our rights. Like, if you were talking about, you know, the rights that are enjoyed by the majority and appreciated by the minority, like, that's precisely the kind of rights that don't need protecting. Right. Like, those, those are the rightsthat are well established and, and for which you're not in danger of the legislature taking them away.

When I take all of that together, uh, I think it is profoundly dangerous. Uh We have, uh, three committed originalists on the court right now, uh, and adding a fourth, in, in my view, uh, is, is profoundly dangerous. So look, like, let's get, let's get that out there, right? Like, the, the idea, it's why, uh, you and I wanted to do, to do this show. Uh, I think we both, you know, sort of felt like, um, you know, we, we wanted to contribute to, uh, the debate and dialogue. This is not an argument that's being made in, uh, liberal circles and, uh, and it should

0:51:36 Thomas: Yeah.

0:52:19 Thomas: That depressing note. Yep.

0:52:39 Thomas: Yeah.

0:52:39 Andrew: Be, uh and I feel, I feel very strongly about that.

0:52:40 Thomas: I think it's become too normalized because of how you've already got three originalists on the highest court in the land. So it's like it's already normal to people. It doesn't seem like the outrageous thing that it really should be.

0:52:42 Andrew: Yeah.

0:52:55 Andrew: It just, I mean, the last thing is from, from a political perspective, right? Like you can follow the mainstream theory of jurisprudence and be, you know, more liberal, more conservative, right? The discussion over how, quote, liberal is Merrick Garland, we don't really know. But what we know is that he abides by the mainstream theory of jurisprudence. Anthony Kennedy has reached a great many very conservative opinions. But the reason why he's a swing justice is because he's not an originalist. Right. And I would you it does not constrain the power of the president to appoint sort of like minded individuals and justices that reached conservative outcomes, but who nevertheless recognize the importance of binding press, who don't have what is, in my view, a disqualifying ideology. So I just wanted to add that.

0:53:45 Thomas: Right. Well, on that note, thanks for taking us through that. As usual, I mean, I've already been convinced because that the cruel and unusual thing was really convinced me about Scalia. It's just such an absurd thing in my view, but thanks for taking us more in-depth on originalism.

0:54:00 Andrew: Yeah. Thank you for letting me rant.

0:54:03 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.

0:54:12 Thomas: All All right, it's time to thank our new patrons here on New Patron Tuesday. Uh, thank you so much to those who went to patreon.com/law. Again, two dollar and up patrons, I really hope you enjoyed this Law'd Awful Movies. It was, uh, by the way, a lot of work put into getting it out. I know it was a little bit late, but I blame February, the worst month ever conceived by humans. But it was an heroic effort and, uh, it it put a lot to time into it. It's really funny, check it out. And speaking of the fine, fine patrons who are going to enjoy Lot Awful Movie this month, Steve Andrews, Justin Chubb, Eric Johnson, me do that again. Teresa, Teresa Gant. Absion. Greg Sullivan. Baphom. Sorry, I can't pronounce that. BF. I've never seen that before. Bafom. Uh, Pascal Romero, Danny Manion, James Classen.

0:55:01 Thomas: Heather Walter, Zachary B, Fos Gonzalez, Memel, uh, Burrs, Molly Elias Garcia, Brendan Kirby, and Sean Tracy. Take it away, Andrew.

0:55:13 Andrew: Yeah, and thank you to Nick Ward, to Zach Jablons, Zach Cam, Robert, Revan, Wingy. Thank you to Gero1369, to Christopher Dulp, to M, to Conrad Syke, John, and thank you to Null. All we appreciate all of your fine patronage.

0:55:35 Thomas: Yeah, I would say that's an error, but, uh, you know, Null is still giving us, you know, two dollars, so it must not be an error. There's no way we can get two dollars from an error. See?

0:55:40 Andrew: Oh. This could be the plot of Brewster's Millions, right? Like, uh, or not sorry

0:55:47 Thomas: I don't know. No, still haven't seen it.

0:55:48 Andrew: No no No, I meant, I meant, uh, Superman 3 in Office Space, right? Like, this is

0:55:52 Thomas: Oh, it's in for men three. Yeah, I love that.

0:55:55 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:56:00 Thomas: All right, it is time to find out if I go eight for 13 or seven for 13. And there's... there's a pretty big difference there. I'm, I'm hoping it's the the former. So how about it, Andrew, let's hear the answer to last week's TTTBE. Really?

0:56:18 Andrew: This was another hearsay question. This was a man in a beach chair in a relaxed state who watches a truck race down on the sand and run down a sunbathing elderly person, and the man shouts out loud, "Oh God, look what that truck driver did, he was racing and going about 100 miles an hour, somebody call 9-1-1," and then the woman who was on the beach but facing the other way heard, heard the first man's outcry. And so the question was, when the case comes to trial, will the court allow both the man and the woman to testify about what the man said? Right. So obviously the man can testify, it's his personal observation.

0:57:03 Andrew: Why would you want to have the woman testify in that situation? Because, you know, perhaps their problems with the first men as a witness, right, having being able to introduce the statement, uh, through somebody else. Like, sometimes there are strategic reasons for doing that. So the question is

0:57:17 Thomas: Okay. Now I'm doubting myself because I, I didn't I didn't understand there'd be any reason for that, but okay, well

0:57:18 Andrew: Yeah. Yes right So it, obviously this is hearsay as to the woman, right? The woman heard the man say, "Oh my God, he went 100 miles an hour," right? So ordinarily, as you know, hearsay is not admissible. So this question was, was testing whether this fit into any of the exceptions to the hearsay rule. And our options were, option A, yes, both can testify because it's an excited utterance and that's an exception of the hearsay rule that goes to a material issue of the case. B was, yes, this is not hearsay and it is not being entered for the truth of the statement by either witness, so they can both testify. That is another sort of way around hearsay is to say, I am not offering the statement for the truth of the matter contained in the statement, but I'm offering it for another purpose, and we can talk about that in another show

0:58:13 Thomas: Yeah I was gonna say what other, that one seems like it's got to be wrong, but okay, moving on, oh

0:58:17 Andrew: C is no, neither of them can testify because the man was impaired due to being too relaxed from his meditation we laughed at this one and the woman cannot repeat the utterances of

0:58:23 Thomas: I feel like it's gonna end up being that one and I'm suing you for, for misleading me but, but go on.

0:58:30 Andrew: An impaired witness, no, it's still funny. And D is, no, neither can testify because, neither, because the utterance is do not fit any of the exceptions to, to the hearsay rule. And Thomas, you picked D, which analyzed the question correctly, but unfortunately is incorrect.

0:58:43 Thomas: Come on, come on. No brainer, no brainer. So

0:58:51 Andrew: The statement, utterance, when you blurt something out in response to a shocking condition. And certainly watching an old guy I get run over on the beach is a shocking condition. This sort of goes back 800 years at common law, that the problem with hearsay is that it's thought to be unreliable and largely is. But there are certain conditions that have arisen as exceptions where we think there is an indicia of reliability. Like in an accident, somebody comes out and says, "Oh, I'm so sorry, this was all my fault," right? Later, they might recant that, but you might want to put them on the stand, uh, excuse me, you might want to not put them on the stand, you might want to admit their statement, uh as hearsay because we have this notion, uh, that, you know, when people are shocked they tend to call out the truth. Now, uh, psychological literature actually disputes that, but, um, but nevertheless, uh, excited utterance is an exception to the hearsay rule. It goes to, uh, the material issue of the case, uh, this, this is an exception. So A is the correct answer, I am sorry to say.

1:00:02 Thomas: Where does that leave me? Seven for 13.

1:00:04 Andrew: Yeah. Seven for 13.

1:00:10 Thomas: It's about time for me to hang up my robes. I don't have what it takes. Yeah, that sucks. I think I psyched myself too much with just how pointless this testimony would be, because I still need to remember, even if testimony would be pointless, it's still admissible. I got to start, start thinking in terms of like that. I think, I think that's that, that could be my problem

1:00:32 Andrew: Yeah. Yeah, I, yeah. This tested, do you know the excited utterance exception to the hearsay rule? And, you know, in the absence of knowing that, I know you, you studied hard in law school. Uh, you were top five in your class, but you know maybe you missed that day in evidence. So, uh, understandable.

1:00:33 Thomas: Yeah yeah Well, Maybe the top four in my class would get it, but I, that's the dividing line. Top five just Not quite. Yeah, well, that's unfortunate. All right, well, thanks for playing, uh, to everyone who submitted questions. Oh, and Andrew, future Andrew, who is our lucky winner this week.

1:00:54 Andrew: It's a tough line.

1:01:05 Andrew: Okay, past Thomas. This week's winner is April Poff, at VADAWN, VADawn13 on Twitter. April's a long-standing fan of the show, and she says, going with A for TTTBE, because I have vague memories of hearing the phrase excited utterance back when I used to watch Court TV. Well, good on you for your vague memories. Excited utterance is exactly the correct phrase to have remembered here. That's exactly what this was. So April Poff is our winner. Give her a shout out and follow her at VADawn13 on Twitter. And thanks for playing.

1:01:47 Thomas: Well, that does it for today's show. Thank you so much to all our listeners. Thank you so much to all our patrons over at patreon.com/law. Thank you so much to all our Andrews over at andrew.com/andrew. And with that said, we will see you guys on Friday.

1:02:00 Andrew: Yep.

1:02:08 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.