OA535: Roe is Doomed. Contraceptives Could Be Next - Part 2

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. This is episode 535. I'm Thomas. That's Andrew Torrez. How are doing, my friend?

0:01:24 Andrew: I am fantastic, Thomas. How are you?

0:01:26 Thomas: Oh, I'm excited to get to the thrilling conclusion. The part two of our big Griswold v. Connecticut deep dive. The deep dive that could not be contained in one episode. It was too meaty, you know. Too filling.

0:01:40 Andrew: Filling is good. We have a lot of vegan, vegetarian listeners and co-hosts, so, you know, it's too filling, I like it.

0:01:43 Thomas: True. Yeah. So, Andrew, it's been a week. Um, we hate to do it, but again, the- the dive, the dive demands what- the dive demand- um, refresh our memory, uh, where we left off in our story of Griswold v. Connecticut and what we can expect in part two.

0:01:51 Andrew: Yeah. We actually left off with a discussion that is eerily prescient of some of the feedback I have gotten in connection with part one that we've aired. Right. Which is, come on. Right. Like people aren't really going to enforce a law on contraception, are they? Right. And some and in some sense, the right, Connecticut law was very, very weirdly written. And so we had talked about prior efforts to litigate and vindicate the constitutional principle that you have a right to decide whether to use contraception in the privacy of your bedroom as part of what the concept of ordered liberty means or the concept of the penumbra of the Bill of Rights, or whatever it is that you want to call that uniquely American system that says some private decisions really ought to be left up to the individuals themselves. So we were teeing up to actually get to the facts of Griswold versus Connecticut.

0:03:05 Andrew: Connecticut um in in our deep dive on yeah

0:03:05 Thomas: There you go. What a perfect, uh, what a perfect segue. Yeah. That is so on brand for our show, Andrew. Let's take a moment to recognize that part one of our massive deep dive on Griswold was just setting- it was just like the prequel in a, you know, the Lord of the Rings book where they talk about the history of the elves for 2,000 years. Um, you know, but that's our show. That's why people love it, I think, because you need that background to fully understand Griswold v. Connecticut.

0:03:10 Andrew: Um know that's right and and the same complaints about oh well are we really going to target people are we're acutely recognized uh by uh Justice William Brennan again my my personal jurisprudential hero, in his concurrence in 1961 said, look, all of this stuff about are we going to prosecute individuals is a smokescreen. This is about deterring birth control clinics from operating. And again, that seems eerily prescient with what's going on in 2020. So with that in mind, we are actually ready to talk about the case that teed up the question, question, can Connecticut pass a law that makes it illegal to use contraceptives in your house? And if they can't, and the answer seems like, and spoiler, it is, no, they can'T. If so, why not? And can you come up with a coherent reason to explain why Connecticut can'T do that, but Texas can ban abortion, spoiler you cannot do that either

0:04:03 Thomas: Mm-hmm. Yep.

0:04:42 Thomas: You can't. Well, what a great teeing up. I'm refreshed. I remember where we were now. So let's get to our part two of this deep dive.

0:04:51 Clip: Down the law, down the law.

0:04:54 Thomas: At long last we're at 1960 something, You said, that British invasion, we gotta do one of those typical, like, documentary setups. The Beatles are flying across

0:04:56 Andrew: So we're at 1965 and that takes us to Griswold versus Connecticut. That's that's great. Yeah. The Beatles were on Ed Sullivan. Sullivan mop tops everywhere. Yeah. And the director of Planned Parenthood and the same Dr. Buxton from before are the plaintiffs challenging the law. They finally have been found. Dr. Buxton was like, you know what? I'm going to violate the law for this and I'm gonna get arrested and get fined my hundred bucks.

0:05:07 Thomas: Yeah that's

0:05:31 Andrew: So, yeah.

0:05:30 Thomas: Awesome, good for that doctor right

0:05:32 Andrew: So he went. And so Griswold was the director of Planned Parenthood, Buxton, same doctor, were found guilty as accessories under that Connecticut law, fined $100 each. And the court by 1965 also said Planned Parenthood had standing under the law. So, you know, kind of on the Thomas principle was like, yeah, that this is, again, effect of the Brennan concurrence going, yeah, yeah, that that thing that, you know, seemed hypothetical four years ago, definitely not hypothetical. Now you have a a real present threat to those who are providing reproductive health services in the state. And decision, seven to two, to strike down the Connecticut law as being unconstitutional, those two Connecticut laws as being unconstitutional splits into three areas that we're going to talk about.

0:06:21 Andrew: We're going to talk about the majority opinion on the merits. That is the source of the word penumbras that you will find ridiculed in the Clarence Thomas concurrence that overrules Roe v. Wade. And we're going we're gonna read that. We're also going to talk about the concurrence in Griswold, which has to do with the Ninth Amendment, which is kind of a liberal road not taken. You could imagine if the United States had had instead of electing Richard Nixon in 1968, had elected Hubert Humphrey. That was a super close election and drifted leftward instead of rightward in the 70s and 80s.

We might have a robust Ninth Amendment jurisprudence today. We don't. Instead, those who call themselves originalists have written an entire constitutional amendment out of existence. And we're going to talk about that. And then finally, we're gonna talk about the dissent, and in particular the Potter Stewart dissent, which I will read you. We could put up trivia after Dobbs comes out, or I could go back to some of the anti-abortion dissents that that that justices like Clarence Thomas have written over the past 20 years. Um, and if you pulled a person off the street and said, you know, choose which one of these was written in 1965 about contraception.

So let's talk about the majority opinion. The majority opinion essentially said, yeah, you know what? There is nothing in the Constitution that says you have a right to contraceptives. There isn't even anything in the Constitution that says you have the right to, you know, a family that you have of the right to, you know, have sex without the government caring what happens in your bedroom.

0:06:31 Thomas: Hmm. Wow. Oh.

0:08:05 Andrew: There wasn't any of that. And so on the one hand, a very liberal, a very literal reading of the Constitution would produce the result of, sorry, there's... there's nothing for us to do here. But on the other hand, the idea that you could let a law stand, which made it illegal for anybody, including, you know, married couples in the privacy of their bedroom for the guy to put on a condom, the Supreme Court found exceedingly absurd. And in fact, you'll see that language in even the dissent, right? This is an unwise, absurd and silly law. And so the majority, you that says if saying we live in a free country means anything, it has to mean the government cannot, you know, empower agents of the post office to come into your bedroom and check if you're wearing a condom.

Right? Right. It can't be that. Right. And that's essentially what the majority opinion says. So first, they worked through some other kind of pro individual rights opinions. So again, this is 1965. This does not ought to go by. So they're like, well, OK, we have this case called Pierce versus Society of Sisters, in which we said that the right to educate one's children as one chooses is incorporated to the states through the First and Fourteenth Amendments. So, in other words, you can pull your child out of public school and send them to a religious institution for for education, even though education isn't

0:09:01 Thomas: Not Not sure

0:09:38 Andrew: Mentioned.

0:09:39 Thomas: How I feel about that one.

0:09:39 Andrew: Yeah, I know. Even though education isn't mentioned in the first... like I said, there's... there's not a lot to work with here in 1965. They say in Meyer versus Nebraska, the same dignity is given the right to study the German language in a private school. You could imagine during World War Two, just like freedom. Right. There were laws passed that made it illegal to learn the German language. That got all the way up to the Supreme Court, because, again, you know, our democracy is way more fragile than you recognize.

0:09:45 Thomas: Yeah yeah Boy.

0:10:08 Andrew: In other words, the state may not consistently with the spirit of the First Amendment contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, and the right to read. Indeed, uh, freedom of inquiry, freedom of thought, freedom to teach, the freedom of the entire university community, without these peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pearson and Meyer cases.

0:10:34 Thomas: Those people trying to ban, uh, critical race theory should have read this opinion. Huh? There

0:10:37 Andrew: Yeah. And then they continue. In NAACP versus Alabama, we protected the freedom to associate and privacy in one's associations, noting that freedom of association was also a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association was invalid as entailing the likelihood of a substantial restraint upon the exercise of their right by petitioners, members, of their right to freedom of association. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.

0:11:07 Thomas: We go all Right, it does, it has a thick penumbra with two C's, or it should bring back the thick penumbra that

0:11:12 Andrew: Yeah. Yeah. I agree. And that just means shadow. In like context, we have protected forms of association that are not political in the customary sense, but pertain to the social, legal, economic benefit of the members. So in Schware versus Board of Bar Examiners, we held it not permissible to bar a lawyer from practice because he had once been a member of the Communist Party. The man's association with that party was not shown to be anything more than a political faith in a political party and not the kind of action proving a bad moral character. So then, on that kind of rather thin record, the Supreme Court then announces the general principle, which, by the way, they get 100 percent correct for the reasoning that I'm about to read to you. Foregoing cases suggest that the specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance.

0:12:11 Andrew: Various guarantees create zones of privacy. The right of association is contained in the penumbra of the First Amendment, is one, as we've seen. The Third Amendment, in its prohibition against the quartering of soldiers in any house in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The Fifth Amendment, in its self-incrimination clause, enables the citizen to create a zone of privacy which the government may not force him to surrender to his detriment. The Ninth Amendment provides the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The Fourth and Fifth Amendments were described in this court as protection against all governmental invasions, quote, "of the sanctity of a man's home and the privacies of life," end of quote.

0:12:59 Andrew: So, and then they say we've had many controversies over the extent to these penumbral rights of privacy and repose, but the fact that we've had them, the Supreme Court says these cases bear witness that the right of privacy, which presses for recognition, is a legitimate one. So, then they says, we've now established that there is a right of privacy, even though privacy doesn't appear in the Constitution. The present case, then, concerns a relationship lying within that zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand under longstanding principles of strict scrutiny.

0:13:48 Andrew: We deal with a right of privacy older than the Bill of Rights. It's older than our political parties, older than our school system. Marriage is a coming together, for better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes, a harmony in living, not political faiths, a bilateral loyalty, not commercial or social projects. Yet it is an Association for as noble a purpose as any involved in our prior decision. Therefore, overturned. So when you see literalists and originalists saying that the right to privacy is not in the Constitution, this is the case they're taking aim at, right? Not Roe versus Wade. Not the right to an abortion. But the right to be free from laws which would make it illegal to use or lose birth control in the privacy of your bedroom without that guarantee, without the right to privacy created by the penumbras and emanations of the Bill of Rights. Our Bill of Rights doesn't protect us from that level of overreach. And we should go back on the offense about that. Right. Look, I will tell you that's

0:14:58 Thomas: We do have a penumbra of rights, a thick, bring back the thick penumbrah. I'm tired of, tired of this.

0:15:02 Andrew: Thick. There we go. We're going to to make we're going to make bumper stickers that say bring back the thick penumbra

0:15:06 Thomas: I mean, that, that was, I, I think I remember a while back asking you about that because cause I think there is some level of conservative discourse that filters through, you whatever the atmosphere here where it's like some people and people who, you know, I don't think are right wing or whatever people will talk about how, well, you know, the court did kind of invent this thingy in Roe v. Wade and there's penumbras. That's a weird thing. And I remember your answer at the time being incredibly good, which was like, no, that's all very very definitely part of the Constitution uh and it would be absurd to say it isn't and let's yeah, as you say, let's let's be prepared to defend that. I know it's tough because it's a complicated thing. It's it's, you know, like it's a hard uh thing to put into a bumper sticker, I guess, but uh maybe the thick penumbra is the one that finally do it. Yeah.

0:15:07 Andrew: Yeah, I will Tell you, in law school, right, at Harvard Law School, right, uh, pretty liberal institution, pretty liberal student body, pretty liberal selection of law professors, there was a little bit of that kind of intellectual, you know, snobbery over the notion of penumbras and emanations. Right. Like it, it, the same way. Right, that there was left wing pushback on the Lemon test. Right? We've talked about that, that the three prong test that is now defunct in sort of all but name only, restricting excessive government entanglement with religion. And, know, and I think that there is, know, there's... there's kind of that desire to be the smartest person in the room that, you know, that leads you to want to search for philosophical abstractions while kind of missing the larger point.

0:16:47 Andrew: And right. So, you know, if I were writing this, would I have used the phrase penumbras and shadows and emanate? No, I wouldn't. I wouldn't have used that. I would have signed on to, this is going to be a nice segue over to the Goldberg concurrence that we're going to read next, but I certainly would not have disparaged and, and don't disparage, and encourage us to embrace the idea that, like, yeah, the Bill of Rights means more than just a specific itemization of the individual words on a laundry list, right? Like the Bill Bill of Rights is not a shopping list.

0:17:19 Thomas: Well, it's it's like they want to turn it into mathematical proofs, you know, don't you think it's like, well, we had A, we add B and now A plus B equals C. So we have C, but you, but that's it. Not only exactly the words that lead you to it. And it's, like, well, I don't think trying to use a mathematical proof is the best way to govern humans, which, you humans are very messy and there's room and everything. And the law shouldn't be math, I don't think in, in a lot of cases.

0:17:22 Andrew: Know. Yeah.

0:17:47 Andrew: Yeah, I often use the example of You can you right. Can define a hot dog as a flaming poodle. Right. But contextually, we know that that's not what that meant. And we know what the purpose of the Bill of Rights was to do. It was to enshrine principles that, you know, we consider to be part of the American way of life. And within those principles is the idea that, yeah, government, you you know, unlike those totalitarian regimes, does not belong in your bedroom. Let's talk about the Constitution we could have had.

0:18:22 Andrew: This is the Goldberg, yeah, this is the Goldberg-Warren Brennan concurrence on the Ninth Amendment. And so, brief digression, I quoted the Ninth Amendment. It forms part of the penumbra analysis. But this is another knockdown elimination question for originalists. Right. And and in fact, was part of the record against Robert Bork. It led to one of the dumbest answers that Bork gave during his hearing before the Senate Judiciary Committee. So the Ninth Amendment says enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

0:18:22 Thomas: Oh, well, this is a transitioning to another eight hour deep dive.

0:19:07 Thomas: Huh?

0:19:07 Andrew: What does that mean? As it turns out, we know exactly what this meant in 1789. Yeah. And this is a super easy question for originalists to answer and 100% proof of how they lie. And the reason we know this is because Alexander Hamilton wrote Federalist 84. And in Federalist 84, Hamilton argued extensively at great length and rather persuasively that the Constitution should not contain a Bill of Rights. In fact, that's why it's called the Bill of rights. That's why they're the first 10 amendments. The Constitution did not contain the Bill Bill of Rights. It, Hamilton's view, prevailed. And here's what Hamilton said in Federalist 84. He said, I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted, and on this very account out would afford a colorable pretext to claim more than were granted.

0:19:13 Thomas: Really? Huh? Huh.

0:20:16 Andrew: For why declare that things shall not be done which there is no power to do? Why, for instance, shall it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power, but it is evidence that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that the power to prescribe proper regulations concerning it was intended to be vested in the national government. And, side note, was 100% correct about that,

0:21:03 Thomas: You're going to have to translate exactly what he's correct about. I thought he just said, I'm not going to miss my shot. I didn't realize there's all these other words that he said. I, that was mainly just that. So what does this mean?

0:21:14 Andrew: So Hamilton is saying we have crafted a constitution in which the government, particularly Congress, has certain circumscribed enumerated powers. Right. The U.S. Congress could not just pass laws for the general welfare. They had to have some connection. Right. And so that's what Article 1, Section 10 sets forth the various conditions. Right, of which regulating interstate commerce has has turned out to be, you know, the most likely section of the expansion of federal power. And so,

0:21:15 Thomas: Right. Yeah. Okay. So,

0:21:55 Andrew: Yeah,

0:21:55 Thomas: You got to think pre bill of rights, he's saying, like, why do, are we restricting Congress from doing things that they don't even have the power to do, I guess, okay.

0:22:04 Andrew: That's exactly right. So what he's saying is, I don't want Amendment 1, Congress shall make no law abridging the freedom of speech or of the press. Right. I don't want that because we have not given Congress any powers to restrain freedom of speak or of And if we write that into the Constitution, by the way, it's going to sound like, OK, we they've got some powers at the outset that that that don't fall within that. And you could make this kind of colorable argument. And in fact, that happened. Right. Like from, you know, the Alien and Sedition Acts were among the first acts passed by the new U.S. Congress in which they said, yeah, well, we're right. We're not going to violate freedom of speech. Obviously, you know, conspiring with the enemy is not part of freedom of speech. So we are going to regulate that. Right. So so I think Hamilton was in many ways correct. I'm not going to read more of his delightful.

0:22:06 Thomas: Hmm.

0:22:26 Thomas: It'll it'll sound like we did, right? Yeah. But so wouldn't that have made for a very, um, toothless federal government? Is that what the thing is? Is that we, he would have, so, okay, in the end, I don't do that, you know, that wouldn't have been great, right? Yeah.

0:23:07 Andrew: Yes. Yeah. Right, no, it would have. So the difference is, of course, Hamilton was writing in an agrarian pre-industrial society. Yeah. And and and we went through the that transformation at the same time that we fought a civil war. So we're going to talk about that, implication that in a second. But notice, right, Hamilton, one of the most influential founding fathers, said, I don't want us to start writing down these are our rights because, A, that would imply that there's some power to regulate the things that we haven't written down. And then B, and I'll read a little bit more, he says, also worried about it constraining our rights too much because what signifies a declaration that the liberty of the press shall be inviolably preserved?

0:23:21 Thomas: Of course, you're

0:24:07 Andrew: What is the liberty of the press? Who can give it any definition which would not leave the ultimate latitude for evasion? I hold it to be impractical. And from this, I infer that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion and on the general spirit of the people and of the government. And here, as is intimated upon another occasion, we must seek only a solid basis that is in reason for all of our rights. So the Ninth Amendment very clearly was meant to respond to Hamilton's concerns, right, to say, OK, we're listing a bunch of rights here. But I promise you, Alec, the Ninth Amendment might as well say Alex in it, right? Like it. I promise you, Alex, the enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Right.

0:24:57 Thomas: No, sorry. Hmm.

0:25:06 Thomas: Right.

0:25:06 Andrew: So the fact that we've listed out a bunch of rights here does not mean that people don't also have rights that are not listed here. That is 100 percent. That that is also the plain language of what the Ninth Amendment means.

0:25:13 Thomas: Yeah. There's not even like a plausible other reading of it, really? Wow.

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0:28:26 Andrew: No. Now, you combine that with the trend that we talked about as the basis of your question, and that is the way our government changed in 1865 with the passage of the 14th Amendment. Right. We said, you know what, that original federalist view that Alexander Hamilton and others set forth doesn't work in a post agrarian industrializing society. It's not enough that what we want is. And in particular, we just fought a bloody war over slavery. Right. We no longer think that you could have a federal protection, but go back to your home state. And it's kind of up to the states to decide whether to reinforce that or not. Right? Full example of that, right, prior to 1865.

0:29:12 Andrew: Right, the First Amendment says Congress shall make no law... respecting an establishment of religion. It was not unconstitutional until the 20th century for a state to have an established church. Right? Yeah. And in 1865, right, was right about the time in which we realized, like, you know what, maybe that view is not correct. Right. Maybe when we have a United States that we cannot have people be people in half of it and property in the other half. Right. Maybe we cannot have a United States in which we have secular legislation in every state but Rhode Island. But, you know, follow, you know, religious. No. We're right. Going to. And that's the basis of the incorporation doctrine. And that's why today, despite the fact that the First Amendment says Congress shall make no law, it means no legislative source shall make any law. So you put those two things together, the Ninth Amendment plus the 14th Amendment's doctrine of incorporation. And you can imagine a very powerful set of constraints on the power of any majority in any legislature, right, state, federal, local, to infringe on the basic rights of individuals, right?

0:29:35 Thomas: Yeah. Yeah.

0:30:28 Andrew: Say, whom you want to have sex with, in what way, and for what reason. So as it turns out, the granddaddy of all originalists was asked to explain what the Ninth Amendment meant during his confirmation hearings. I refer to Robert Bork. And he made a complete and utter ass out of himself. Right.

0:30:42 Thomas: It's almost like originalism sucks and isn't a good, uh, view of jurisprudence.

0:30:50 Andrew: Yeah, it's kind of weird how that works. He gave his very famous inkblot answer. This was Dennis DeConcini asking him the question.

0:30:57 Thomas: So what was it? I know, that's funny, because I think you've referenced this, and I probably know the words you're going to say that he said, but now I think I understand it better, it's going to have more meaning for me. So

0:30:58 Andrew: Yeah.

0:31:08 Andrew: So Senator DeConcini says, what is your interpretation of the Ninth Amendment? Judge Bork says, I think the Ninth Amendment therefore may be a direct counterpart to the Tenth Amendment. The Tenth Amendment says, in effect, that if the powers are not delegated to the United States, it is reserved to the states and to the people. And I think the Ninth Amendment says that, like powers, the enumeration of rights shall not be construed to deny or disparage rights retained by the people in their state constitutions. That's the best I can do with it. So, yeah, he says, look, yeah. It doesn't just mean general rights. It means the federal government is not taking away additional rights that you have in your state constitution, even though that is utterly divorced from the history that we just read and went through and the plain language.

0:31:52 Thomas: He tried to convert it to a state's rights thing. Okay, yeah, and the fact that he says that's the best I can do, it's a kind of a telling admission. Oh.

0:31:53 Andrew: Yeah. Yes. That's the best I can do with it. Yeah. And we haven't gotten to the worst part. DeConcini. Yes, you feel that it only applies to their state constitutional rights. Judge Bork. Senator, if anyone shows me historical evidence about what they meant, I would be delighted to do it. I just do not know. Senator DeConcini. I do not have any historical evidence, which is a shame because if he'd listened to the show and then time traveled back, he could have. Have. But what

0:32:02 Thomas: Okay, okay. Yeah. Yeah, a-hole, listen to our show in 1980-something.

0:32:25 Andrew: I want to ask you is purely hypothetical, Judge. Do you think it is unconstitutional in your judgment for the Supreme Court to consider a right that is not enumerated in the Constitution to be found under Article 9? Judge Bork. Well, no, do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an Amendment that says Congress shall make no. And then there is an inkblot and you cannot read the rest of it. And that's the only copy you have. I do not think the court can make up what might be under the inkblots if you cannot write it.

0:33:00 Thomas: Why does this say Congress shall make known my parents having sex? No, just never mind. Rorschach test joke. It's fine.

0:33:06 Andrew: That's right. I mean, look, that that is as it took me a second to get it. That's really excellent. Why do you keep showing me these dirty pictures? Oh, that's that's so good. This is an admission by Robert Bork that he is reading out explicit text of the Constitution. Right. Because, yeah, he's saying if it said Congress shall make no and then there was an inkblot. Right. And we don't know what's under that. Congress shall make no zorbling. Nobody knows what the hell a zorbling is. Then you can't enforce that provision. Then Then you have to read Congress shall make no out of the Constitution. Now, there's an argument for that in the in an actual inkblot example.

0:33:28 Thomas: Yeah. Yeah.

0:33:47 Andrew: Right. But this is not that we have. Yeah, we have abundant, immediately obvious historical evidence as to what those words meant. We have the plain language of those words themselves. And nevertheless, it is the inkblot reading of the Ninth Amendment that prevails.

0:33:51 Thomas: Importantly. Wow.

0:34:10 Thomas: Wow.

0:34:10 Andrew: And to prove that, I'm going to go back to concurrence that garnered three votes here in Griswold versus Connecticut. Connecticut. And again, Goldberg, Warren, and Brennan. My conclusion, Justice Goldberg writes, is that the concept of liberty is not so restricted and that it embraces the right of marital privacy, though that right is not mentioned explicitly in the Constitution. It is supported both by numerous decisions of this court, referred to in the court's opinion, the one we just read, and by the language and history of the Ninth Amendment. In reaching this conclusion that the right of marital privacy is protected as being within the protected penumbra of specific guarantees of the Bill of Rights, the court refers to the Ninth Amendment. I add these words to emphasize the relevance of the Ninth Amendment to the court's majority holding.

0:34:56 Andrew: And then they go through cases that we talked about that were in the majority opinion and then say—the reading of the Ninth Amendment. The Ninth Amendment says the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. The amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and the Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected. In other words, it wasn't written to assuage Alex. Presenting the proposed amendment, Madison said. Right. So, again, I just I just want to point out like this is Bork saying, well, if you would just show me the historical evidence and and here it is.

0:35:47 Andrew: Right. Like written in black. You could have opened to the concurrence.

0:35:47 Thomas: Well, we must our archaeologists must have only discovered this evidence subsequently, right? That they're in a dig fossils

0:35:55 Andrew: Yeah. Yeah. The concurrence in Griswold versus Connecticut. Yeah, in presenting the proposed amendment, James Madison said it has been objected also against a bill of rights that by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication that those rights were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into the system. So, you know, Madison saying, it's okay, Alex, I still think you're smart, but I conceive that it may be guarded against. I have attempted it, as gentlemen may see, by turning to the last clause of the Fourth Resolution, which was the text of the Ninth Amendment. That is from the Annals of Congress. Justice Story wrote of this argument against a Bill of Rights and the meaning of the Ninth Amendment in 1891, right, in his famous commentaries on the Constitution.

0:35:58 Thomas: Yeah hmm.

0:36:49 Andrew: And Justice Story was the Lawrence tribe of his day, right? He was the most prominent constitutional scholar of the 19th century. He said, in regard to a suggestion that the affirmance of certain rights might disparage others or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained. But a conclusive answer is that such an attempt may be interdicted, as it has been, by a positive declaration in such a Bill of Rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. And then to the Ninth Amendment, this clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim that an affirmation in particular cases implies a negation in all others and, in converse, that a negation in a particular case implies an affirmation in all of these.

0:36:54 Thomas: Yeah, Right.

0:37:36 Thomas: Like Or whatever, right?

0:37:37 Andrew: These statements of Madison and Story make clear that the framers did not intend that the first eight amendments be construed so as to exhaust the basic and fundamental rights which the Constitution guaranteed to the people. And then skip reading the rest of this, but I encourage you, if you like reading opinions, read the Goldberg concurrence in Griswold. This view says, so we should view the Ninth Amendment as saying that if a right is a basic and fundamental right, that the Ninth Amendment means that we are to protect that as well. Right. That the Constitution granted Congress no power to constrain basic and fundamental rights either. Right. And that that is consistent with the position advanced by Hamilton and the position protected in the Ninth Amendment. And then that is extended to the states via the 14th Amendment.

0:37:47 Thomas: At

0:38:34 Andrew: So in other words, that neither Congress nor state legislatures may legislate in areas that would violate basic and fundamental rights. Rights. What's a basic and fundamental right? Well, look, we're a court. We are called upon to answer hard questions, right? And they say, in determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions, right? So people were making the bad argument of, oh, well, come on. If you're saying it's a, quote, fundamental right, you'll just make that up. And even in 1965, that was a tired argument. And Justice Goldberg says, rather, we must look to the traditions and collective conscience of our people to determine whether a principle is so rooted there as to be ranked as fundamental.

0:39:24 Andrew: The inquiry is whether a right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice, which lie at the base of all of our civil and political institutions. Liberty also gains content from the emanations of specific constitutional guarantees and from experience with the requirements of a free society. Again, does that mean that we have a laundry list? No. But it means that when you look in light of history, when you look in light of the traditions upon which our other decisions depend, the notion of a right to privacy, quote, is a fundamental personal right, emanating from the totality of the constitutional scheme under which we live.

0:40:13 Thomas: This point, I think the students in the Andrew Torrez lecture hall should stand and applaud. I think you've made that that case very well. Yeah, it's it's a very it's a very important point and it's so unfortunately so hard to make that I feel like it gets lost, you know. I feel it's just easier, I think, for a lot of non-lawyers to just be like, well, did they say we have that? No, they didn't say we had it. Okay, so then all these lefties are trying to put stuff in the Constitution that's not there, you know, that's such a easier, simpler, simpler thing to grasp. Yeah.

0:40:46 Andrew: Yep. And my point is, although that became weaponized in the 80s, 90s through to today, right, that that that argument was level has been leveled at the court since its inception. Right. So, yeah, we have Goldberg ends his opinion with, although the Constitution does not speak in so many words of the right to privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the state from disrupting the traditional relation of the family, a relation as old and fundamental as our entire civilization, surely does not show that the government was meant to have the power to do so. Rather, as the Ninth Amendment explicitly recognizes, there are fundamental personal rights, such as this one, which are protected from abridgment by the government, though not specifically mentioned in the Constitution. Constitution. So I intend, maybe I will write book or a law review article on rehabilitating the Ninth Amendment.

0:40:57 Thomas: Yeah.

0:41:43 Andrew: Certainly deserves voice, and I'm glad I was able to give that On the show. After any inspiring speech, uh, let's let's get to the bad news. We're not going to spend a ton of time on this. Yeah, yep.

0:41:49 Thomas: I must we it was such a classic, oh, a deep dive, Andrew. This is this is almost what our show would be without, if if Hillary had won, except I guess we wouldn't be having to do shows about, uh, you know, the right to abortion and maybe even the right of contraceptives being taken away, but, you know, still the the kind of deep dive that was the kind of deep dive this show could have been in an alternate, alternate reality.

0:42:20 Andrew: And Now I'm going to read to you what Potter Stewart wrote in 1965, and you tell me that you could distinguish this from what Samuel Alito is going to write in 2022. Since 1879, Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. It's a practical matter. The law is obviously unenforceable. Parenthesis, except here.

0:42:20 Thomas: Oh.

0:42:32 Thomas: Joy. Oh.

0:42:46 Thomas: I think I think you've read this quote before. Yeah, yeah.

0:42:49 Andrew: Except in the oblique context of the present case, right? Like, yeah, it's obviously unenforcible, except, you know, as against the people against whom it has been enforced, right.

0:42:53 Thomas: Yeah. Right. Now Yeah. Oh.

0:42:59 Andrew: As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice based on each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise or even asinine. We are asked to hold that it violates the U.S. Constitution, and that I cannot do.

0:43:26 Thomas: Yeah, darn.

0:43:27 Andrew: In the course of its opinion, the court refers to no less than six amendments to the Constitution, the First, the Third, the Fourth, the Fifth, the Ninth, and the 14th. But the court does not say which of these amendments, if any, it thinks is infringed by the Connecticut law. We are told that the due process clause of the 14th Amendment is not as such the guide in this case, which with that as much I agree. There is no claim that this law duly enacted by the Connecticut legislature is unconstitutionally vague. There's no claim the appellants were denied any of the elements of procedural due process at their trial so as to make their convictions constitutionally invalid. And as the court says, the day is long past since the Due Process Clause was regarded as a proper instrument for determining the wisdom, need, and propriety of state laws.

0:44:07 Thomas: Uh-huh.

0:44:07 Andrew: As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in them to invalidate this Connecticut law, even assuming that these amendments are fully applicable against the states. Now, again, side note, right, this is 1965, so not all of the clauses of all those amendments had yet been incorporated out to the states. Since then, I believe they all have. It has not even been argued that this is a law respecting an establishment of religion or prohibiting the free exercise thereof.

And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of the freedom of speech or of the press or of the right of people peaceably to assemble and to petition the government for a redress of grievances. No soldier has been quartered in any house. There has been no search, no seizure. Nobody has been compelled to be a witness against himself. What provision of the Constitution then makes this law invalid? The court says that it is the right to privacy created by several fundamental constitutional guarantees. With all deference, I can find no such general privacy in the Bill of Rights or in any other part of the constitution or in Any case ever decided by this court

0:44:55 Thomas: Look.

0:45:16 Thomas: Harder. Yeah.

0:45:17 Andrew: Oral. Yeah, we are here to decide cases agreeably to the Constitution and laws of the United States. It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope the law before us does not reflect the standards of the people of Connecticut, well, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books. So there you have it.

Right. No right to privacy in point. Point to all I'm saying is point to where it says privacy in The Constitution. If if the sentence point to where it's privacy in THE Constitution or some close variant thereof is not in the court's majority opinion, I will do an Andrew was wrong. Know, when when this court strikes down around Roe versus Wade. That's that's their argument. That's their playbook. And followed up by the like, yeah, I know, of course, you know, abortion at, you know, banning abortion at at six weeks strikes me as unwise. But, you Know, if

0:45:55 Thomas: Yeah.

0:46:22 Andrew: You you want to do that, go to your legislature. And yeah, yeah.

0:46:22 Thomas: My hands are tied. Yeah. Oh.

0:46:33 Andrew: You're stay the same. So there you go.

0:46:34 Thomas: Boy. So This is a very specific prediction, and I think we will be able to, I mean, it's depressing one, obviously, too, but I'm I'm very interested to see like how how how well you nail this one. I'm obviously rooting that well. I don't know what I'm rooting for you know what's what's I was

0:46:50 Andrew: I would like not to nail it. I would like to be as wrong as I've ever been.

0:46:56 Thomas: Gonna say that too, but you not nailing this particular prediction just means that they still, uh, strike down Roe v. Wade but just with a slightly different language. Yeah.

0:47:02 Andrew: Yeah, let me say on the list of things, right? So let's rank them in order of preference. One, not overruling Roe v. Wade.

0:47:04 Thomas: Yeah. Yeah. No.

0:47:11 Andrew: Two, overrulting Roe vs. Wade on the reasons that I have said. Three, over ruling Roe v. Wade and not on the reasons that I have said, which will have the effect of being disastrous for humanity and also proving me wrong, which, you know, is that's that's obviously the worst possible. And yeah, that's the trolley problem where, you know, it's just the track is a circle and runs over everyone. Say this. I went through this deep dive, hopefully to equip you to start having these discussions and engaging in these arguments now, because where you see these arguments deployed against abortion, these arguments are going to be deployed and can be and come from the Supreme Court protecting the right to contraceptive use. They come from the basic concept, right, that, you know, there's reason I gave that Homer Simpson, right? Like Like you you saw it movingly in the Goldberg concurrence. The idea that living in America, the concept of the American way of life, of the fundamental rights that our Constitution was meant to protect is is is more than a

0:47:28 Thomas: One wants that Yeah. Yeah.

0:48:16 Andrew: Shopping list. And don't let them reduce that to like, well, point to me where it says abortion. And yeah.

0:48:22 Thomas: It's so anti-intellectual, really. I mean, it's using intellectual tricks to to come to a result that's just absurd.

0:48:25 Andrew: Are. Yep.

0:48:28 Thomas: Not a fan, Andrew, not a a fan of it of

0:48:29 Andrew: Yep. So there you go. Me, me neither. But But I was a fan of of of being able to in this multi part deep dive kind of go through Griswold v. Connecticut.

0:48:36 Thomas: The deep dive all This show is brought to you by Green Chef. And you might be sitting there thinking of Green Chef, wait a minute, you've advertised HelloFresh in the past. Well, Chef is owned by HelloFlesh. And with a wider array of meals to choose from, there's something for everybody. Personally, I like to switch between both of them because you can kind of gauge maybe what's available one week on one versus the other. And now you can enjoy both with a discount with Opening Arguments. Here's what Green Chef is all about. They have a meal plan for every healthy lifestyle, keto, paleo, plant powered, or even if you just want to have delicious but balanced dishes. And now that I'm vegetarian, Green Chef offers a little bit more flexibility and it's difficult to find good, varied vegetarian meals, sometimes. It's not the easiest thing in the world, but Green Chef makes it incredibly easy.

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0:50:55 Clip: WOAH-

0:51:09 Andrew: A little, how about a little Kraken Law?

0:51:13 Thomas: Love it. Can But never get enough of Kraken Law.

0:51:16 Andrew: I have been feasting on Kraken's small and smaller, while, uh, uh, touring Eastern Europe. But no, this is everybody's favorite Kraken lawyer, Sydney Powell, um, um, you remember when Dominion sued her for defamation? Yeah, that's still going because what Sydney Powell did is a thing that, that, again, I have described as a perfectly ordinary, uh, civil litigation tactic that was, um, she moved to dismiss rather than answer the complaint. We also told you at the time, uh, that, uh, a, that's generally a bad move, in or, generally a low probability move, I should say, in defamation cases, right? Because the gravamen of most defamationcases comes down to, you know, we said you said X, and the standard on a motion to dismiss is if the plaintiff's allegations are correct. Now, that's helped here by the fact that the plaintiffs' allegations about the things that Sidney Powell said are 59 pages of documented statements that Sidney Powell herself

0:51:20 Thomas: Yeah.

0:51:30 Thomas: Yeah. Isn't that still going? Okay.

0:52:23 Thomas: Yeah.

0:52:23 Andrew: Has said on Fox and OAN and the like. So we told you that that was going to lose. And she did, in fact, lose, as a result of that loss, which we covered, Sidney Power had to answer that defamation complaint. And that answer is in. It is both an answer and it asserts counterclaims, which, again, is standard practice. And I feel like I need to to point out when it is standard practice because, you know, when Sydney Powell fails to do something that is, um, or when Sidney Powell manages to to actually do a law thing correctly, I feel like she should get like one of those little scratch and sniff stickers for it. Yeah, right, um, spoiler, this is only half correct, um, but procedurally, right, you file your your counterclaim along, along with your answer.

0:52:58 Thomas: Yeah. Big news.

0:53:09 Thomas: Oh, good job. Well done. You could almost be a lawyer, Sidney Powell.

0:53:14 Andrew: In there, right? The little kitty on the, yeah. Also, just another note, who right, do you think is representing Sidney Powell? Who are her lawyers?

0:53:16 Thomas: Yeah. God. The MyPillow guy? I don't know. Like, at this point, you know, who's left? Left.

0:53:26 Andrew: Yeah. Yeah. Howard Kleinhandler and Jesse Binnall, right. And so, if you recognize those from from Detroit, right? Like, it is the same group of grifters over and over again. And that is why we covered the Detroit sanction hearings so significantly. If Howard Kleinhandler is disbarred in the middle of this, right, like, she's going to have to get, and Jesse Benoit, they're both subject to the same order, she is going to get a new lawyer. So that will be fun. She also has a third guy on, uh, Lawrence Joseph, who we haven't seen before, uh, but he's a pro-Trump seditionist, so again, it's the same central cabal of folks of who don't believe in democracy, um, and and oh, and or our grip, I should say, and our grifters, right, and and intend tend to profit from the downfall of democracy.

0:54:16 Thomas: Yeah. We have some like people who don't believe in democracy, but they do it for charity purposes. Like they're not trying to, they're in it for the love of the game, you know, and taking down democracy. And then there's the people want to take down democracy and profit off of it.

0:54:26 Andrew: Right. Right. Exactly. It's, paragraph 181 of the original complaint was the one that I said 59 pages long. That was off the top of my head. It's actually only 49 pages long that lists every Sidney Powell statement that Dominion claims is defamatory. You might be interested in knowing that Sidney Powell filed only a blanket denial to that, which says, you, Sidney Powell denies the allegations in paragraph 181. And by the way, again, that's, that's fine. And that's classic, but usually in a defamation case, if you haven't said the thing that they said is defamatory, um, you, you might answer more than just like, no, you're going to have to prove that. That. Or might aussi concede, right? Like, I don't understand what the strategic value is when they said, know, paragraph 181, and this goes, you know, subparagraphs A through Z, Z, Z, right.

0:55:20 Andrew: But but it's like a on December 8th, 2020, Sidney Powell on Fox News said X like, doesn't do you any good to deny that if you did, in fact, say that on Fox news. I really want to talk to you about is the counterclaim that Sidney Powell has raised, and that is a counterclaim of abusive process. And the argument is, Dominion, you're being super mean to me by filing this lawsuit, and this lawsuit is an abuse of the judicial system, and therefore I should get a million, billion, trillion dollars from you. Now, the very first thing I had to go figure out was, is there even such a thing as a tort of abusive process? Because I wasn't sure. I've never seen it. I'd never litigated it. And wouldn't surprise me if they just made it up.

Thomas, I have to tell you, I was moderately surprised to discover that there is, in fact, a tort called abusive process. This will end the level of surprise on this show. Because is the tort of abusive process at all what Sidney Powell thinks it is? Hell no. It is not close. It's not remote. Okay, just need to go through very quickly this case, Houlihan versus Worldwide Association of Specialty Programs and Schools, um, because it is a 2010 case from this particular court, right, the U.S. District Court for the District of Columbia. And there's no law of the DC, but, like, you know, saying right, hey, this court in applying the law on this tort that you have raised in your uh counterclaim, uh, held X, like that's a pretty persuasive argument to other judges, is right on the U.S. District Court for the District of Columbia.

0:55:29 Thomas: Yeah, yeah, sure.

0:55:56 Thomas: Yeah definitely.

0:56:07 Thomas: Yeah Yeah, that was,

0:57:08 Andrew: So, process. First, let's define what the tort is. Under District of Columbia law, and I'm reading from the opinion here, abusive process occurs when process, that is filing a legal complaint or doing other law stuff, has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do. That's a little bit confusing. We're going to break that down. There are two essential elements to an abuse of process claim. One, the existence of an ulterior motive, and two, an act in the use of process other than such as would be proper in the regular prosecution of the charge.

0:57:56 Andrew: Now, this was about a Utah case, And right? It was the same argument that Sidney Powell is raising here, right. It was, hey, you're filing this lawsuit against me because you're mad. And particularly, you were filing a defamation lawsuit against me because you're mad, you don't like what I have to say, and you're trying to shut me up, well, that's what Sidney Powell is saying anyway. She's saying Dominion is filing this defamation lawsuit because it doesn't like that I'm exposing the real truth and blah, blah, bla, and it's censoring my First Amendment and free speech and, you know, et cetera, et cetera. This case was pretty similar, and again, out favor of the scumbag here. So okay? Here's what happened in the Houlihan case. So Worldwide Association of Specialty Programs and Schools are prisons, right? Like, they're horrible, monstrous, like they're schools for troubled youth, right, and so what that means is, um, they're, they're a prison-like environment, they impose harsh discipline, and in the late 2000s, right, they came under intense scrutiny, and Thomas Houlahan was one

0:58:23 Thomas: Kind of. Yeah,

0:59:15 Andrew: Of the journalists that helped break the scoop, uh, know, the story on these kinds of monstrous boarding schools that were just essentially prisons for kids where rich parents would send their troubled teens, and, like, the staff there would, and, you know, beat the crap out of them and stuff, right. So that's what Hooligan is doing, right? He's writing an expose on these schools, and, uh, love that the Worldwide Association of Specialty Programs and Schools abbreviates to WASPs.

0:59:34 Thomas: OK,

0:59:46 Andrew: So WASPs then decided to sue Houlihan, right? And they sued him for defamation, right. And Houlihand then brought brought a subsequent lawsuit and said, look, this effort by WASPs to sue me for defamation is just trying to intimidate me into not investigating his prison schools. The suit is baseless. It's terrible. It is an abusive process,

0:59:45 Thomas: It looks like

1:00:18 Andrew: And I want kind

1:00:19 Thomas: An anti-slap thing or I guess a slap thing kind of of kind

1:00:22 Andrew: Of. Yeah, kind of, and an additional fact in Houlihan's favor, again, all of this, you see way better facts than Sidney Powell has. Right. But, but an additional factor in Hounihan's favour was that Utah defamation suit that WASPS brought was dismissed. Dismissed. So you've got that all teed up and you're like, okay, uh, what did DC do with Hoolahan's claim for, uh, malicious abusive process? It dismissed the case, right? And it said, yeah, look, here's the problem, um, people are allowed to sue you for defamation even when they don't like you. Right. And even if you suspect that they're doing it out of an improper motive, that's not what abusive process means.

1:00:22 Thomas: OK. All right. Right. Yeah, right. Right.

1:01:04 Andrew: Abusive process means you've used the legal system to get somebody to do something else. So classic example would be I file a criminal charge against you. And then I also have a civil lawsuit. And in settlement negotiations, I casually mention, oh, by the way, we'll, of course, drop our criminal charges if you pay us the full amount we want in the civil lawsuit, In right? Other words, I'm using the process to leverage to get something.

1:01:37 Andrew: And even then, that might not apply, actually.

1:01:36 Thomas: And so you're saying even in this case, which was actually maybe something meritorious, unlike the, you know, Sidney Powell, even in the case where someone was trying to expose this awfulness of whatever these schools are, you're saying even then the court was like, sorry, that's not an abusive process.

1:01:52 Andrew: Yep. Yeah. They said, look, that's not abusive process even if the other lawsuit was dismissed against you and even if the lawsuit lacks merit. They said, look, abusive process occurs when process has been used to accomplish some end which is without the regular purview of the process or which compels the party against it to do some collateral thing which he could not legally and regularly be required to do. And by that, right, it says, and I'm going to read directly from the opinion, by design, however, however, defamation claims, as in the Utah suit, are meant to silence individuals from making defamatory or otherwise harmful statements. Therefore, the Utah suit was used for the purpose for which it was intended. If it was used for the purpose for which it was intended, it cannot be an abusive process, even if you win, right? And now as you start to unpack that and you realize, in light of the American rule, which, right, both sides pay their legal fees, how of course this tort has to be incredibly narrow.

1:01:58 Thomas: Huh? Okay. Hmm. Yeah.

1:02:57 Andrew: Right, you you you apply for abusive process when somebody has filed something not to do what it was intended to do, but instead to bully you into doing something else, right. But Dominion, and now let's go back to Sydney Powell, Dominion has filed this lawsuit to get Sydney Powell to do what a meritorious defamation lawsuit is intended to do, which is shut the hell up and stop saying bad stuff, right? Right. And and either they're going to win or they're going to lose. But but the response to this is going to very clearly move to dismiss this counterclaim and their response is going to be hilarious. And it's going to say, yeah, look like if you think we're wrong on defamation, win the case. We're going to win that, by the way. In any event, all you're alleging is that our defamation suit is designed to do what defamation suits are supposed to do, which is to stop people from saying things that are harmful. And by the way, you've said a ton of harmful stuff about us. See particular case, Houlihan versus wasps. And there you go.

1:03:19 Thomas: Yeah. Yeah, wow.

1:04:00 Thomas: Sidney Powell continues to be an even worse lawyer than I would be. Is that the line here?

1:04:05 Andrew: And Again, we joke a lot on the show. That is a hundred percent true.

1:04:11 Clip: And thank you, Let's go!

1:04:12 Thomas: Yeah, and now it's time to thank our Hall of Famers, our all-time greats, uh, these, this is each and every week we thank our top patrons, and recently we, we made the change to to only think them once a piece each month, and we are on the third quintile. You know, I said the second quintile is my favorite, but I, you know, you know that I meant the third quartile is actually my favorite. So, uh.

1:04:32 Andrew: Obviously, obviously.

1:04:32 Thomas: Of course. I mean, please. For. Sorry. And Andrew, why don'T you go first.

1:04:36 Andrew: All. Right, thank you to Torsten Peel. And a goat asks, would wouldst thou like to live deliciously? Elect Thomas Smith president, American Honky-Tonk Bar Association. Support your local Peruvian restaurant. Alpha Kenny Body. Angry Mac Face. Penelope is glad Sydney got sanctioned for Terpsichore. The Books That Burn podcast, reviewing fictional depictions of trauma since 2019. This is not the greatest voting system in the world. No, this is just a plurality. April Poff, don't call me a mofo, I will have you know I'm ex-mofo, I was a mozo for show, but I'm a mofono-mo. Murray Gregerson, can we all just take a moment and appreciate how much Thomas's intro music absolutely slaps?

1:05:17 Thomas: Oh, thank you. People think if a Christian took my exact intro music and put some Christian words over it that they wouldn't owe me any money, that's, and I would, I would be mad about that, or Let's say, let's, let's make, let's tailor it, let is, uh, Sydney Powell makes her legal podcast.

1:05:18 Andrew: Oh yeah. Absolutely. Um. Sorry. All.

1:05:35 Thomas: She takes my exact outro, she puts some different words over, oh, it's a satire of my theme, and then she, uh, she gets off scot-free, gets to use my slapping intro, that sucks, no, but nobody likes that.

1:05:45 Andrew: Uh, looks like freedom's back on the menu, boys, like someone who has very clearly embraced the theme here. Vote Lesbian for the third fabulous quintile of patron names. Now, that is brilliant. Okay. Uh, Proud Professory, Patreon promoting the privilege to prevent pregnancy, learned hand job, I like that one, Dallas DA John Cruzo owes justice to Diamond Ross, Thomas Smith's Begrudging Parody Songs Volume One, Jake and Seattle Pete.

1:05:56 Thomas: Wow. Yeah. That's that's fantastic.

1:06:20 Andrew: Thomas, take it away.

1:06:20 Thomas: Thank you to Big Gabe owner, I, I'm saying it separately so it doesn't, doesn't turn into my employer evilly added an MBA clause after years of active employment under threat of job, job termination. Jeez, sorry about that. Christopher Brown, Philly live show 2022, I'll bring the cheesesteaks to the Fully Stocked Basement Bar Platinum Night. Ooh, if you could get me some, like, Impossible Meat or Beyond Meat cheesestakes, I would really appreciate that, and I would enjoy the heck out of it. Lawful Copter says, hello and thanks for all the fish, OA Live Show in Sydney, Australia, please. I won't be vaccinated till October at the earliest, thanks, government. Odin passed the bar exam, oh wow, well, good for Odin. The coin is rigging T3B with a Chinese thermostat controlled by an Italian satellite.

1:07:09 Thomas: One of us likes big butts and cannot lie. The other likes big bucks and cannot tell the truth. You may ask one question to escape. I think I've seen that viral tweet before. Canada has precedent saying Martians Can't sue people in Ontario. Jolly v. Petelletier, 1999. I envy them. Wow, yeah, me too. Robert M. Lou. Crimer, no criming. Brevity nikomo cosca, famed soldier of fortune, at your service. Black Canyon of the Gunnison live show. Paulie Hernandez, Chris Waltrip, these are just simple farmers, people of the land, the common clay of the new west. You know, morons. In times when freedom seems lost, great souls arise to reclaim it. I didn't come to play, I came to win. Come all, pit fighter, ca. Okay, uh, and that's it. Thank you so much, much to obviously the best quintile, the third quintile. We all know that. I've never said anything

1:07:19 Andrew: Oh, that's good, though, yeah.

1:08:03 Andrew: Third

1:08:03 Thomas: Other.

1:08:03 Andrew: Quintile is the best quintile.

1:08:05 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:08:10 Thomas: And now, more evidence of me not being a good lawyer. Let's see how I did on Thomas takes the bar exam. And the coin at least is going to go down on the ship with me.

1:08:20 Andrew: Yeah. So, Thomas, this was a very interesting, and I would say typically worded, bar exam question. Question. There is a twist, and I'm going to identify what that twist is as we get into the answer. So this was conditions in state A, a bunch of rain left the ground very unstable, and so, in alternate universe bar world in which the U.S. Congress does stuff and cares about states that are suffering, Congress passes a law that says you can't drive trucks over a certain weight into state A, and we're going to enforce that at the checkpoints on the border on the state's toll highways. That has the effect of benefiting trucks that operate only within state A are not engaged in interstate commerce because they never have to pass through the check points.

But if you service a bunch of different states, or if you're out of state and and service in state A, you would have to pass a checkpoint, and you'd have to lighten your load. So business in state B challenged that law as unconstitutional. And then, and this is slight, the twist part, it says, which of the following arguments would be the business's best argument that the law is unconstitional?

1:08:43 Thomas: Yeah.

1:09:32 Andrew: And without prejudice to your answers, Thomas, one of the things I want you to know for the next time a question like this comes up is, sometimes when the question says, which is the best argument available to the litigants, you should read in an implicit, all of these may suck, but which one sucks the least, right? Like, it is not meant to imply they, they could all be terrible arguments, which is the least worst.

1:09:50 Thomas: Yeah, so they could all be bad. Yeah yeah. OK.

1:09:57 Andrew: And I need to tell you, in fact, these are all bad arguments, and the question is, which is the least worst, right? Like, the reality is, if Congress decided to pass a law like this, they would almost certainly be able to pass a law like this. So, first go through the eliminations, narrowed, right, it down to B and D. You eliminated A and C. And I, I want to tell you, those are really, really good eliminations, especially on A, in which you say the law imposes an unreasonable burden on interstate commerce. There is no requirement that the federal government not unreasonably burden interstate commerce, the federal government is entitled to regulate interstate comercethen

1:10:09 Thomas: Wow. Okay good that's what I thought at least yeah all right at least I got that let's see so far

1:10:34 Andrew: You also eliminated C, which is the standard that is required for strict scrutiny, right? You must show that the law is both necessary and narrowly tailored to achieve a compelling governmental interest. That is how you would raise an equal protection challenge on the basis of a suspect class, right? On the basis of race, for example. Here, the burden is not, like, we're not discriminating between, you know, like, trucks with, you know, white drivers and trucks with black drivers, right. Like we're talking about trucks Trucks that only operate in state A or trucks that operate in both state A and some other state?

1:11:02 Thomas: Right, right. So you wouldn't have strict scrutiny because it's not a protected class.

1:11:14 Andrew: Correct, So right? Now it comes down to B or D, right? And if the best argument is an equal protection violation on the basis of a non-protected class, that is just, you know, the difference between a truck that operates interstate versus intrastate, right, that would be rational basis test. That would make the answer D, that would mean you and the coin are both wrong. Or if the privileges and immunities clause prevents the federal government from discriminating against out-of-state citizens, that would make you both right. Thomas, I'm sad to tell you that you have fallen for the attractive distractor here. The only solace is not only did the coin fall for it as well, but I think a bunch of lawyers and law students listening will do so.

1:11:15 Thomas: Okay.

1:12:01 Andrew: The privileges and Immunities Clause of Article 4 of the Constitution is a restraint on what states can do. So for the same reason that A is wrong, B is also wrong, right?

1:12:10 Thomas: So, Wow. So, The federal governor, the Congress can just be like, we hate state A, let's just just screw over state A in favor of state B, and and that's that's okay?

1:12:21 Andrew: Nothing more, yes, that's right. And so think about it, right, like think about the preclearance requirements of the Voting Rights Act, right. Like that openly discriminated, against a bunch of different states. There's no no constitutional prohibition against doing so.

1:12:28 Thomas: That is a good point. Yeah, okay. Yeah. So There wasn't a racist who's like, hey, I'm trying to be a racist in state A and that's now harder than being a racist in state B, this is unfair, my racist buddies in state B are bragging about how easy it is to be racist over there, and then meanwhile you put preclearance in front of me, yeah, okay, no, I, I wish I had thought of that argument, that makes a ton of sense, okay.

1:12:58 Andrew: You go. So that leaves D, which is not a great argument, right, that the law is not rationally related to a legitimate government interest. You'd be like, yeah, the government has an interest in you, interstate highways not collapsing, uh, because heavy trucks drive over them, uh, so, uh, too bad, law stands, uh, but this, but it's still the best argument from among four very bad ones so there you go well

1:13:01 Thomas: Yeah, now yeah that's that's very tricky But is it the best? Does it factor in, um, that this doesn't even do the thing that it's trying to do because drivers that stay within state A are above that weight limit anyway, does that factor that in at all, or no?

1:13:31 Andrew: It is much more, the other three are not legal standards ender hurts yeah so

1:13:34 Thomas: Just, okay, gotcha, it's more about that, okay Fair enough, yeah, well, you know what, I'm going to take the positives from this, Thomas' second chance bar exam alive and well, you messed up last week totally got clobbered by last week's question, at least I'm back to 50-50, having a 50-50 shot and the coin has gone down in Flames too, so there you have it, wow, wow, I am looking forward once again, pretty tricky question, so I'm looking forward to using and abusing my powers as, uh, delegate to, to the, uh, T3b answer committee or whatever, so future Thomas, who is this week's big winner? And I'm once again here to exercise my newfound power to choose the T3BE winner, and I choose Craig Bryant, that is at Craig K. Bryant, B-R-Y-A-N-T, who says on Twitter, Congress has power to regulate interstate commerce, so how does company argue law is illegitimate? By saying it has no rational relationship to that power. I don't think they'll win. This is kind of Southwest Airlines with the serial numbers filed off.

1:13:38 Andrew: Yeah exactly right and at least the coin went down in flames too so you know

1:14:44 Thomas: I'll take your word for that because I don't know that case because I am not the lawyer. But that's great. You got the right answer. Everybody follow at Craig K. Bryant on Twitter. Well done. Keep playing, everybody. I'm having so much fun choosing these winners. And that's our show. Andrew, thanks so much for the deep dive. Yeah, truly, again, it's a worrying deep dive, but very necessary information. We know what to look out for. And let's work to stop theocrats from banning abortion and birth control and God knows whatever's next.

1:15:15 Thomas: Thanks so much. Thanks listening. We'll see you on Friday.

1:15:14 Andrew: Here, here, then.

1:15:18 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:15:51 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.