 This is Mises Weekends with your host Jeff Dice. Ladies and gentlemen, welcome back once again to Mises Weekends. Very pleased to be joined by a returning guest today, Alan Mendenhall, who was actually just on the show a couple of months ago after the Trump election, but we wanted to have him back today because we are talking about the nomination of potential Supreme Court Justice Neil Gorsuch. If you recall, Alan is the head of the Blackstone Center at Faulkner University here in Alabama. He's an attorney. So I think a PhD, is that correct? That's correct. So you share that in common with Neil Gorsuch, which is one of the unusual things about him. There's not a single, at least current, and I think Judge Napolitano said he doesn't think there's ever been a Supreme Court Justice who has a PhD. What do you think of that? I think it's very interesting and I think that's a correct fact. And what's also interesting about Gorsuch is he studied the new natural law under John Finnis, which makes him unique. I don't think we've ever had a philosopher up there on the court, somebody that's actually studied natural law and jurisprudence. And it will be interesting to see how that plays out in his confirmation hearings because I remember when Justice Thomas was asked during his confirmation hearings if he believed in natural law and he said something to the effect of, well, yes, but it doesn't affect the way I interpret the Constitution. Well, it will be interesting to see if Gorsuch will have a similar answer. I don't think he will because I think he's got a pretty extensive record as a new natural lawyer and it will be interesting to see how someone who's a positivist who believes that all law is positive and that only what the Constitution says is what the law of the land is going to be and obviously interpretations of the Constitution. But what happens when you have a Supreme Court justice who is actually embedding natural law principles into the textual record, who's actually embodying or who's actually incorporating natural law into constitutional opinions so that the natural law becomes the positive law of the land? Right. But we should suggest, I think to our listeners, a lot of people imagine that there is a philosophical talk in law school and really there isn't. I mean, it's kind of just a bunch of studying appellate cases and learning some civil procedure rules. The idea that if you went to a top law school like Harvard and Yale, which I might add all of our current Supreme Court members attended those two schools, talk about non-representative, but this idea that you get some sort of a lot of theory or philosophy in law school is false and don't you think some of these people are in that sense less educated than the public imagines? Oh, I think that's absolutely true. I think in our law school, we do make an exception. We have a foundations of law course that goes from Aristotle up to the president and you study all sorts of schools of jurisprudence, but that's the exception rather than the rule. There may be an elective course on such a thing, but federal judges are generally not philosophers and even Gorsuch's opinions, I had a chance this morning I was going through some of them looking for the smoking gun and I couldn't really find anything. It looks as though he only considers arguments presented by the parties. His holdings are narrowly tailored to achieve the limited purpose of resolving a particular issue before him. He'll dispose of cases on technical grounds before tackling big issues with sweeping impact on existing law. He's concerned about whether issues are properly preserved for appellate review, whether the statute of limitations has expired or whether a cause of action has accrued. These are not big momentous philosophical issues. These are just procedural technicalities and he's a judge's judge. He's not, I think, somebody that the Democrats would need to be worried about for big sweeping changes in the law. Of course, it's different when you're in the Supreme Court since Supreme Court opinions necessarily entail major views and you're the highest court in the land so anything you rule at the Supreme Court level has an effect on all lower courts and all laws throughout the country. Well, we're trying to talk today about Gorsuch from a libertarian perspective. Not all of us share all this enthusiasm for the Constitution, but this is the world we live in. When you bring up that he's considered an originalist, a textualist, but you also mentioned he's got a grounding, a PhD in philosophy and understands natural law. But I want to go back to what you said because it was interesting. Are you saying that an originalist, in other words, someone who really sticks to the four corners of the document, which most right wing judges claim to do, that they are by definition positivists because that's the document and it was written by man. It was written by a legislature of sorts, the convention, because we tend to think of ourselves or people on the right tend to say, well, we're not positivists. We believe in common law. Well, that's an accusation that was actually leveled against Justice Scalia. There are people out there that think Scalia was too positivist because he adhered to the text of the Constitution and at times that was intentioned with theories of natural law. That's also a common criticism of Judge Bork's position was that he was too much of a positivist and too dismissive of natural law. Now, from their perspective, the judiciary was at a different state back then where for the conservative viewpoint, you had judges who were discovering new rights and so conservatives were looking for ways to rein that in. Now, it's interesting to think about what is the Supreme Court justice supposed to look like from a libertarian perspective. One of the reasons why Gorsuch's nomination is so momentous, so big, so controversial is the stakes are high because the U.S. Supreme Court has irrigated to itself so much power as an institution, so much power that would have been inconceivable to the founding generation and the Supreme Court now enjoys the power to affect nearly all kinds of activity within any zone of human experience. You may say one thing on a sidewalk that you can't say two steps. If you take two more steps, you can't say that thing. So I think it's tough to assess from a libertarian perspective what the ideal libertarian judge would look like or mode of judging would look like. I do think if you look at an originalist, at least you're looking to somebody who is adhering to the United States Constitution, which was drafted in a more libertarian time, I think there was a libertarian ethos at that period of American history that is absent today. So at least you have somebody trying to adhere to that and the role of a judge is sort of different because the judiciary analyzes and interprets legislative statutes according to the letter of the Constitution, which means a judge doesn't look at a law and say, oh, that's good, oh, that's bad, oh, that's wise, oh, that's unwise, oh, that's libertarian, oh, that's not libertarian. A judge looks at it and just says whether it's constitutional or unconstitutional. And that seems to me to be a different exercise from, you know, it's not a second legislature, in other words, you wouldn't have justices up there striking down laws for being non-libertarian or creating laws. You wouldn't have judges creating laws because they were libertarians. So it is always sort of tough to evaluate judges in our federal system and on the U.S. Supreme Court because the institutions themselves can be at odds with a lot of libertarian ideas. Well, but also things that move so far. That's why it irritates me to hear someone like a Chuck Schumer say that we're going to reject any nominee who's outside the judicial mainstream because we're so far afield at this point. Now, when you mentioned the Supreme Court sort of inserting itself into parts of life it was never intended to insert itself into, here's what bugs me out and is that we just muddled through this horrific election where people were so psychologically devastated if the wrong person won because I think fairly we feel that there's a lot at stake. The executive branch is wildly powerful beyond its constitutional bounds in my view and now Supreme Court justices too have become this life and death epic battle. It divides Americans along left and right lines along socially liberal social conservative lines. It becomes this epic culture war. I mean, isn't this all just a terrible symptom of the Supreme Court gone amok? I think it is. It's funny that you say that I was talking to somebody the other day in Philadelphia and he was saying, you know, I miss when Facebook was Halloween pictures and spring baked pictures and then it was then it was, you know, babies and now it's Armageddon every day. And I think that politics is sort of seeped into every level of our lives and it becomes hard to, you know, have have a drink with somebody without politicizing your conversation. Now with with the Democrats, you mentioned Schumer, by the way, Schumer, Obama, Biden, Hillary, Leahy, Feinstein, they all they all voted to confirm Gorsuch to the 10th Circuit on a vote voice vote. It was a unanimous decision. So it'll be interesting to see how they try to walk back that at this at this juncture and see what what's changed between now and then that would make them have a different view of Gorsuch. But one positive thing I see about all this is that now that Trump's Trump's choosing who's going to lead these agencies, these administrative agencies. And now you've got some skepticism coming from the left about the size of these agencies. I mean, for a long time, it's been the right talking about, Oh, the massive power of these administrative agencies, we need to, you know, we need to roll back the administrative state and curb bureaucratic excesses. And these agencies are staffed by, you know, they're they're unaccountable agencies populated by unelected government bureaucrats with high salaries and low stress jobs and great benefits all paid for by the American taxpayer. And, you know, that's been sort of the conservative line. And now that you've got, you know, Rex Tillerson at state and John Kelly at Homeland Security, who are going to be in charge of enforcing and administering Trump's executive order and immigration, for instance, you're going to have the left really decrying the powers of these administrative agencies. They may think, Oh, these agencies shouldn't have these powers. But for a while, they haven't been in a position where, you know, their key issues have been under threat by by administrative agencies. Well, I mentioned this in a show I did with Tom Woods a week or two ago when we're talking about politics and hypocrisy and and Schumer and Feinstein voted to to appoint by Voicewood Gorsuch five years ago. Now they're changing their tunes. What you have to understand, I think, is that politics is war. It's war by other means. There's no right and wrong. There's no fair or unfair. It's like saying that a flanking maneuver in a battle is unfair because we didn't see it coming. So I think we have to take all this in that vein. It always strikes me as odd when when people go on and on about the hypocrisy of the other party because there's no fair in politics, just as there's no fair in war, but that's that's an aside. Let me ask you this, since we're on sort of this political intersection with the Supreme Court, talk about this idea that that the seat that Gorsuch potentially might occupy is a stolen seat because for the for the last not quite year since Anthony Scalia died or for part of the year as a lame duck president in his final year, Barack Obama wanted to nominate or did nominate Merrick Garland and this nomination was never considered by the Republican controlled Senate. So is this true? Is this the case that the Republicans stole a ninth seat from Obama? Well, I think it's a it's a brilliant rhetorical move by the Democrats. I think it's something that they're throwing out there to see if it catches. You know, at these moments when you have big transitional things taking place, you try to figure out what rhetoric is going to catch on and and and really flow through those channels of communication, the best way in social media and all that sort of thing. And I think it's a good choice of words. I don't think it's an accurate one necessarily. There was there was nothing that prohibited the Republicans from doing what they did. In fact, you know, there's not you can't say that anything they did was unconstitutional. I mean, what they did was was permitted just as the Democrats will be fully entitled to, you know, filibuster if they want to filibuster. They can filibuster. Of course, it's just nominees and there are mechanisms in place for the Republicans to invoke cloture. And, you know, that process is happening in a way that is lawful. So I don't know why I don't know that you can call it a stolen a stolen seat in that sense. So, you know, stealing implies theft and, you know, illegality, something illicit going on. And I just don't see that being the case. They just may have been outplayed politically on on that score. Well, let's talk about Gorsuch, Neil Gorsuch himself. He sits on the 10th circuit, which apparently includes Colorado. You'd think that apparently he does not have a bunch of cases dealing with takings or land use or water rights, that sort of thing. You mentioned he does have some cases dealing with criminal procedure, that sort of thing. So is does this guy have libertarian-ish impulses or is he a crypto Nazi that we should all fear? Well, I don't think he's a libertarian, but he has some good positions on criminal law. He's he's in favor of strong Fourth Amendment protections from unreasonable searches and seizures. Seizures. There's evidence that he dislikes prosecutorial abuse, and that he's in favor of limiting qualified immunity that protects government officers from liability for actions they've taken in the scope of their duties. And he really makes an effort to avoid criminalizing innocent conduct is just one example from a case I saw this morning. There was a 13 year old child who had been prosecuted under a statute that made it illegal to disrupt public education. And and Gorsuch had dissented saying basically that this child had not his what he had done. He was fake burping that he so he was fake burping and had been arrested. It was like a PE class and and Gorsuch said, well, you need something more than just class disruption. You need some sort of physical invasion that disrupts the actual functioning of the school, you know, just fake burping in class is not enough to get a 13 year old arrested. And amazingly, amazingly, Gorsuch was actually writing a dissent in that case. And there's there's another case. It's a criminal. There was a criminal statute that prohibited the knowing possession of a gun by a felon. And Gorsuch said that he believed that the alleged violators of the statute must not only know that they possess the gun. So the the issue here is whether we're talking about knowing possessions, not only know that they possess the gun, but also they have to know that they're actually felons. And he said with some language that could actually be interpreted as supportive of the Second Amendment, that the mens rea element of the crime must be proven as to each element. You have to prove knowing possession and knowing status as a felon. Otherwise you're criminalizing innocent conduct. So because the Constitution itself is very protective of the rights of criminal defendants, I think having an originalist is helpful from a libertarian perspective. Well, of course, there's a lot of controversy about judicial activism and whether a court ruling represents legislating from the bench or whether represents some sort of noble protection of of hidden constitutional rights is a matter of one's perspective. Do you think he's an activist judge? I do not think he's an activist judge. No, I don't I don't see evidence for that. I mean, there's evidence that he wants to roll back the Chevron doctrine, the Chevron doctrine. He called it a behemoth. Chevron doctrine derives from a 1984 case. And its basic principle is that courts should defer to administrative decisions and the expertise of administrative agencies and their interpretations of the statutes that they're charged with enforcing. Well, of course, if the agencies are in charge of making judicial-esque interpretations of their own power, well, they're going to keep letting their power expand ad infinitum, you know, they're just going to keep growing and growing. And so Gorsuch has advocated for judicial intervention into those areas and to pushing back against that inevitable growth of the administrative agencies. And as I said earlier, this may be something under a Trump administration that the left can actually agree with. In the past, maybe not, but now they may be seeing some of the drawbacks to administrative, vast administrative power. So when someone like a Schumer questions or at least brings up the idea that Gorsuch is outside the mainstream of judicial thought, I mean, talk about that. That seems like loaded terminology, especially from the left, which seems to which seems to apply well. Of course, Roe v. Wade is sacrosanct and it's settled law and nobody could possibly think that that Roe is bad law or that abortion is an issue that ought to be left to states, which I think a lot of constitutionalists make. What does it mean now to be within the judicial mainstream? Well, that's a good question. You know, I think a lot of the the conversation about mainstreaming things is a way to try to marginalize somebody. It's tough to marginalize Gorsuch because he is such an establishment figure in a lot of ways, you know, with this, with where he went to school and, you know, he worked for a white shoe law firm in D.C. He's clerked for the, he's clerked for the U.S. Supreme Court, two U.S. Supreme Court justices. He clerked for a judge on the U.S. Court of Appeals for the District of Columbia Court. So, you know, it's hard to say how that's not mainstream. And there's nothing that just jumps out at you about about his opinions. As I said earlier, most of his opinions seem to be somewhat boring. They're actually well written. They've got some pithy lines and he, his factual narratives tend to be kind of fun to read. But for the most part, there's nothing, there's no smoking gun yet that I've seen. But the thing that I think that they may be looking at is maybe his book, his positions on euthanasia and physician assisted suicide. Some of his things on, some of his ideas on that may lead them to infer positions, for example, on life and Roe v. Wade and those kinds of cases. But I guess, you know, everybody seems to be calling everybody outside the mainstream these days. And it's hard to tell, you know, what the parameters of acceptable opinion are supposed to be, according to the political figures. I don't think Trump wants Roe v. Wade overturned. I don't think people in his administration particularly do. I don't think social issues animate him. I don't think, I think Trump's probably indifferent to Roe v. Wade. I don't know that he really cares. Now he may care about having support and having political support. And to that extent, he would care. But I'm not sure, you know, as an individual, he really cares either way. Well, I'm going to ask you one final question this time about immigration. Obviously, Trump's travel ban has been in the news, his proposed border wall has been in the news. Judge Napolitano in the past has spoken about how immigration could be seen from a constitutional perspective as a matter for states. Obviously, the Constitution itself in Article 1 talks about naturalization, but doesn't talk about immigrants or immigration per se. So give us some of your thoughts on this issue. Maybe Gorsuch will face something. Maybe there'll be a challenge to Trump. He may face something. It'll be interesting because I guarantee you he'll be asked about immigration during his confirmation hearings and it will be interesting to see how much he says about it because you can't say a lot about something that's going to come before you in the court. But I think Judge Napolitano is right. I think letting these immigration laws fall to the states would be a good thing. I mean, I'm all for decentralization, diffusion, dispersal, devolution of power, checks and balances, separation of powers. You know, I'm all for those things and I think that would be a step in the right direction. Well, we're out of time. We need to wrap this up. But talk to us about how we can find out about the Blackstone Center, how people can follow Allen Mendenhall and a little bit about what you do. Oh, well, thank you. My personal website is just www.allanmendenhall.com and my first name is A-L-L-E-N. The Blackstone and Burke Center is www.blackstoneandberck.com and that's A-N-D, not Amperstand. And I'm Executive Director of the Center and we run conferences and fellowship program for students who want to come to law school. We will be giving them full tuition fellowships and they'll be working with me and we'll have reading programs that are sort of extracurricular. We'll be going through things like, you know, High Ex-Constitution of Liberty, for example, and other sort of landmark texts and discussing them. And you'll be helping with a judicial college if you are accepted as a fellow and we'll be doing those every year, once a year, and we'll be bringing in state court judges. We don't want to focus on federal judges. We want to focus on state court judges and we want to educate them in topics like natural law, natural rights, economic freedom, religious liberty, private ordering, the common law tradition, and these kinds of things. Well, ladies and gentlemen, I encourage you to follow him at Alan Mendenhall on Twitter because he's got a really interesting Twitter feed and I tend to spend too much time clicking on some of the articles he links. Alan, thanks so much for your time today and ladies and gentlemen have a great weekend. Subscribe to Mises Weekends via iTunes U, Stitcher, and SoundCloud or listen on Mises.org and YouTube.