Listen now | “Tear it down. Start over again. We can make a brand new start.” - Blue Mafic A Bad Omen Judicial Excess Recorded: June 25th, 2022 Published: April 36th, 2022
Your guest makes the commonly-heard claim that the mere fact that abortion performed before quickening was not punished as harshly (or, in some cases, at all) in English or early American common-law courts somehow gives historical support for the right found in Roe, at least prior to quickening. See, e.g., Aaron Tang, The Originalist Case for an Abortion Middle Ground (September 13, 2021), https://ssrn.com/abstract=3921358. But there is *not a single recorded instance* of a legal text or commentary in English common law or in American law prior to the passage of the Fourteenth Amendment speaking of any “right” to an abortion.
Just because an act was not heavily punished or criminalized at the time of the founding does not mean that the founders considered it a "right" that would be included in the 9th Amendment. In principle, the mere fact that an action wasn’t previously prohibited cannot be the basis for calling it a “right,” or else no new laws prohibiting actions that were previously tolerated could ever be passed. For example, for centuries, our Nation tolerated the smoking of tobacco in its restaurants. Many states and cities nonetheless passed laws prohibiting smoking in public restaurants. There was, of course, no basis for litigants to challenge these new anti-smoking laws by claiming that, merely because it was long tolerated by the law, smoking tobacco in restaurants was a “fundamental right” deeply rooted in our legal history and tradition. Only if there was a longstanding tradition of the law affirmatively protecting the ability to smoke in restaurants might there be even a hint of such a “fundamental right.”
I like Damon but tbh inviting him again for the same topic for me just was not much added-value. I would love to hear some pro-life position on this podcast (there are plenty in the orbit, Charlie Cooke, Kevin Williamson, French, Liz Wolfe, or at least some originalist POV). This is very one-sided even though the guys are trying to engage the other side.
After SCOTUS hands down the last decision of the term in the coming week, it would be great to bring David French on the pod to break things down. He comes from a slightly different than Damon and has expertise in all of the relevant areas the Court had decided cases this week and for the rest of the term--First Amendment and religious liberty, Second Amendment, abortion, plus originalism and the conservative legal movement more broadly
I usually love you guys but this episode was disappointing ngl. I got the vibe that Kmele was the only person who actually read or looked at Alito's decision. I was confused by Root claiming that Alito doesn't touch on his originalist argument about abortion and the quickening-- there's a part of his decision where Alito outlines that argument and explains why he disagrees. Also Alito is very clear that he finds abortion fundamentally different than other issues discussed by the Court because it involves the destruction of a potential life. Root also ignores this part of the decision as well, saying that Alito doesn't have an explanation for why abortion is different than gay marriage or interracial marriage ect. Maybe Root is right about everything he said! But I still feel he came across more as a partisan than as a legal analyst this episode. I love the Fifth Column because you guys are so good at being an independent voice on this stuff, but this episode almost felt Vox-y at times.
I love Damon (I just finished Glorious Liberty, and it was excellent), but this is a hilariously one-sided take he's providing. There is A LOT to hate about Roe and Casey, even (especially?) for a pro-choice libertarian, but you'd never know it from listening to this episode.
Thank you SO much for having Damon back on for a perfectly-timed recording. There is a lot to love about this episode.
Like many, my Spidey sense tells me the ruling will lead to bad things. The Dems need to resist tying the overruling of Roe into their “democracy in peril” talking point. Heads up: “democracy” — for better or worse — is occurring when state legislatures ban or restrict abortion. Striking those laws down is therefore actually the undemocratic part. And yet, as every first grader used to learn, that is the entire fucking point of the judicial system. (Also, rarely mentioned in these critiques is that the justices in Roe and other approved rulings were similarly unelected.)
I am a lawyer, but not the useful kind of lawyer. I do IP work at a Fortune 50 company. But it strikes me that there is a lot to be said for Damon’s take on the “quickening” being the standard IF these are the legal standards that have been messily developed through precedent. It just seems like the standards are so subjective that perhaps it is no surprise that justices find the answer they are looking for in a given circumstance. While broadly pro-choice myself, Roe is a totally fucked up opinion. As in a lot of areas of life, consistent application of a principle would be nice to see.
Don’t get me started on the FDA and Juul. I don’t smoke, but we are literally witnessing the public health apparatus murder people as far as I’m concerned. Makes no fucking sense. Also the moral panic around vaping occurred — correct me if I’ve got the timing off — at a time when preparing for a fucking pandemic might have come in handy.
Hayek made a distinction between law -- the norms, customs, and traditions that would be enforced even without formal institutions -- and legislation -- the rules that are defined and enforced by formal governing institutions.
Throughout history there have been plenty of laws (by this definition) that I find abhorrent, and I see no inherent moral value in customs and traditions simply because they are customary and traditional. But on a purely functional level, a government that enforces legislation that is more or less in keeping with the predominant laws is going to be more successful and stable than a government that tries to drag society in a direction it isn't ready to go in.
I'm against abortion in most circumstances because I think a person becomes a person at conception (though I'll admit it's a tough question to answer). So on one hand I'm happy with the outcome in Dobbs (I'll leave aside for now the reasoning used to arrive at that outcome).
But it's obvious that there is no broad, cross-cultural, national consensus on what the Hayekian law *ought to be* with respect to abortion, and I'm worried about the destabilizing effect that trying to legislate in the face of that disagreement is going to have. And it's not as if we need more destabilization.
On the other hand, maybe Dobbs could help by freeing States up to pass legislation more in line with the laws that seem to predominate among their people. But in most States there is still plenty of internal disagreement, and I'm not confident that we can avoid nationalizing *any* issue in this current political climate.
But if, like me, you think that abortion has resulted in the loss of millions of innocent lives, isn't this all a risk you have to be willing to take? I think so, but...man, I always thought I'd be happier to see Roe overturned. And like I said, part of me is happy. But I can't shake this sense of foreboding.
I know this much -- I really, really wish that instead of getting bogged down in legalese or going round and round in circles arguing about life vs choice, more people (public intellectuals, judges, politicians, celebrities, random people on social media...) would focus on the question of personhood. I don't think we'd all magically come to some consensus, but at least we'd be cutting closer to the heart of the issue (I think).
Funny, the thing I care most about in all these incredibly contentious topics is the vapes.
I have had, and continue to have some strong feelings about the fuckery (as I see it) around the satanic panic around vapes. But as a long time smoker, I have grown comfortable with the fact that no one gives a shit about whatever I might think on the topic. I can sympathize as I refuse to identify with essentially anything vaguely resembling a "movement" or some kind of "club", but this thing has always been something that rustled my jimmy with vigor. I have seen so many of my trailer trash kinsmen switch over to vaping from smoking, who are now actually back to smoking cigarettes largely due to this insane attack on the vapes.
Anywho, I could go on for thousands of words on this nonsense, but another thing I have grown comfortable with is doing so generates more shame in me than rubbing one out to bugs bunny in drag when I was a kid. I got what I wanted, but at what cost? Great episode as always!
1) Kavanaugh is saying you can't count to 5 without him. That's what his opinion is
2) Thomas is being consistent. Roe is overturned because "substantive due process" is not a thing, thusly, other decisions reliant on it should be revisited, that doesn't mean overturned. Kavanaugh lays out how. The 14th isn't the only thing that gay marriage is based on, despite what your hysterical guest would have your listeners think.
I'm just saying that you've had Damon like at least twice since you've had David French, and I will continue to bang my spoon on my highchair for a crossover with David and Sarah Isgur for a Supreme Court term wrap up.
Your guest makes the commonly-heard claim that the mere fact that abortion performed before quickening was not punished as harshly (or, in some cases, at all) in English or early American common-law courts somehow gives historical support for the right found in Roe, at least prior to quickening. See, e.g., Aaron Tang, The Originalist Case for an Abortion Middle Ground (September 13, 2021), https://ssrn.com/abstract=3921358. But there is *not a single recorded instance* of a legal text or commentary in English common law or in American law prior to the passage of the Fourteenth Amendment speaking of any “right” to an abortion.
Just because an act was not heavily punished or criminalized at the time of the founding does not mean that the founders considered it a "right" that would be included in the 9th Amendment. In principle, the mere fact that an action wasn’t previously prohibited cannot be the basis for calling it a “right,” or else no new laws prohibiting actions that were previously tolerated could ever be passed. For example, for centuries, our Nation tolerated the smoking of tobacco in its restaurants. Many states and cities nonetheless passed laws prohibiting smoking in public restaurants. There was, of course, no basis for litigants to challenge these new anti-smoking laws by claiming that, merely because it was long tolerated by the law, smoking tobacco in restaurants was a “fundamental right” deeply rooted in our legal history and tradition. Only if there was a longstanding tradition of the law affirmatively protecting the ability to smoke in restaurants might there be even a hint of such a “fundamental right.”
I like Damon but tbh inviting him again for the same topic for me just was not much added-value. I would love to hear some pro-life position on this podcast (there are plenty in the orbit, Charlie Cooke, Kevin Williamson, French, Liz Wolfe, or at least some originalist POV). This is very one-sided even though the guys are trying to engage the other side.
Two of the articles mentioned in this episode:
"Alito's Abortion Ruling Overturning Roe Is an Insult to the 9th Amendment" by Damon Root:
https://reason.com/2022/06/24/alitos-abortion-ruling-overturning-roe-is-an-insult-to-the-9th-amendment/
"The Hard Problem of Abortion Rights" by Clark Neily and Jay Schweikert:
https://www.cato.org/blog/hard-problem-abortion-rights
After SCOTUS hands down the last decision of the term in the coming week, it would be great to bring David French on the pod to break things down. He comes from a slightly different than Damon and has expertise in all of the relevant areas the Court had decided cases this week and for the rest of the term--First Amendment and religious liberty, Second Amendment, abortion, plus originalism and the conservative legal movement more broadly
I usually love you guys but this episode was disappointing ngl. I got the vibe that Kmele was the only person who actually read or looked at Alito's decision. I was confused by Root claiming that Alito doesn't touch on his originalist argument about abortion and the quickening-- there's a part of his decision where Alito outlines that argument and explains why he disagrees. Also Alito is very clear that he finds abortion fundamentally different than other issues discussed by the Court because it involves the destruction of a potential life. Root also ignores this part of the decision as well, saying that Alito doesn't have an explanation for why abortion is different than gay marriage or interracial marriage ect. Maybe Root is right about everything he said! But I still feel he came across more as a partisan than as a legal analyst this episode. I love the Fifth Column because you guys are so good at being an independent voice on this stuff, but this episode almost felt Vox-y at times.
I think we only need 10 more podcasts to get the complete story about what is going on in the Welch household of late.
Tune in next time!
Glad this came out today. This is a serious matter that has been met with wildly unserious reactions. Childlike, even. It’s been a long 24 hours.
“Giving money and power to government is like giving whiskey and car keys to teenage boys.”
P. J. O'Rourke
I love Damon (I just finished Glorious Liberty, and it was excellent), but this is a hilariously one-sided take he's providing. There is A LOT to hate about Roe and Casey, even (especially?) for a pro-choice libertarian, but you'd never know it from listening to this episode.
Thank you SO much for having Damon back on for a perfectly-timed recording. There is a lot to love about this episode.
Like many, my Spidey sense tells me the ruling will lead to bad things. The Dems need to resist tying the overruling of Roe into their “democracy in peril” talking point. Heads up: “democracy” — for better or worse — is occurring when state legislatures ban or restrict abortion. Striking those laws down is therefore actually the undemocratic part. And yet, as every first grader used to learn, that is the entire fucking point of the judicial system. (Also, rarely mentioned in these critiques is that the justices in Roe and other approved rulings were similarly unelected.)
I am a lawyer, but not the useful kind of lawyer. I do IP work at a Fortune 50 company. But it strikes me that there is a lot to be said for Damon’s take on the “quickening” being the standard IF these are the legal standards that have been messily developed through precedent. It just seems like the standards are so subjective that perhaps it is no surprise that justices find the answer they are looking for in a given circumstance. While broadly pro-choice myself, Roe is a totally fucked up opinion. As in a lot of areas of life, consistent application of a principle would be nice to see.
Don’t get me started on the FDA and Juul. I don’t smoke, but we are literally witnessing the public health apparatus murder people as far as I’m concerned. Makes no fucking sense. Also the moral panic around vaping occurred — correct me if I’ve got the timing off — at a time when preparing for a fucking pandemic might have come in handy.
Hayek made a distinction between law -- the norms, customs, and traditions that would be enforced even without formal institutions -- and legislation -- the rules that are defined and enforced by formal governing institutions.
Throughout history there have been plenty of laws (by this definition) that I find abhorrent, and I see no inherent moral value in customs and traditions simply because they are customary and traditional. But on a purely functional level, a government that enforces legislation that is more or less in keeping with the predominant laws is going to be more successful and stable than a government that tries to drag society in a direction it isn't ready to go in.
I'm against abortion in most circumstances because I think a person becomes a person at conception (though I'll admit it's a tough question to answer). So on one hand I'm happy with the outcome in Dobbs (I'll leave aside for now the reasoning used to arrive at that outcome).
But it's obvious that there is no broad, cross-cultural, national consensus on what the Hayekian law *ought to be* with respect to abortion, and I'm worried about the destabilizing effect that trying to legislate in the face of that disagreement is going to have. And it's not as if we need more destabilization.
On the other hand, maybe Dobbs could help by freeing States up to pass legislation more in line with the laws that seem to predominate among their people. But in most States there is still plenty of internal disagreement, and I'm not confident that we can avoid nationalizing *any* issue in this current political climate.
But if, like me, you think that abortion has resulted in the loss of millions of innocent lives, isn't this all a risk you have to be willing to take? I think so, but...man, I always thought I'd be happier to see Roe overturned. And like I said, part of me is happy. But I can't shake this sense of foreboding.
I know this much -- I really, really wish that instead of getting bogged down in legalese or going round and round in circles arguing about life vs choice, more people (public intellectuals, judges, politicians, celebrities, random people on social media...) would focus on the question of personhood. I don't think we'd all magically come to some consensus, but at least we'd be cutting closer to the heart of the issue (I think).
Funny, the thing I care most about in all these incredibly contentious topics is the vapes.
I have had, and continue to have some strong feelings about the fuckery (as I see it) around the satanic panic around vapes. But as a long time smoker, I have grown comfortable with the fact that no one gives a shit about whatever I might think on the topic. I can sympathize as I refuse to identify with essentially anything vaguely resembling a "movement" or some kind of "club", but this thing has always been something that rustled my jimmy with vigor. I have seen so many of my trailer trash kinsmen switch over to vaping from smoking, who are now actually back to smoking cigarettes largely due to this insane attack on the vapes.
Anywho, I could go on for thousands of words on this nonsense, but another thing I have grown comfortable with is doing so generates more shame in me than rubbing one out to bugs bunny in drag when I was a kid. I got what I wanted, but at what cost? Great episode as always!
Huge week for the Maternity Holster Industry
1) Kavanaugh is saying you can't count to 5 without him. That's what his opinion is
2) Thomas is being consistent. Roe is overturned because "substantive due process" is not a thing, thusly, other decisions reliant on it should be revisited, that doesn't mean overturned. Kavanaugh lays out how. The 14th isn't the only thing that gay marriage is based on, despite what your hysterical guest would have your listeners think.
Could you guys find an even MORE hysterical and hyperbolic guest next time? The very end of society!
I'm just saying that you've had Damon like at least twice since you've had David French, and I will continue to bang my spoon on my highchair for a crossover with David and Sarah Isgur for a Supreme Court term wrap up.