 Trevor Burrus And I'm Aaron Powell. Aaron Burrus Joining us today is Tara Smith, professor of philosophy at the University of Texas at Austin. She is the author of numerous books including the new book Judicial Review and Objective Legal System from Cambridge University Press. Welcome to Free Thoughts. Tara Smith Good to be here. Thanks. Aaron Burrus Your book is about judicial review but before you get to judicial review you have to – you get through a lot of other things in the beginning and you start more foundationally about it as foundationally as you possibly can start which is the nature of reality essentially and objectivity and you call it getting reality right. So can you talk about what objectivity is in your view and why it's important to start with it in a book of legal philosophy? Tara Smith Sure. And yeah, yeah. I think that's really important. Why should we care about objectivity in a book about judicial review which is about how should judges interpret, understand, apply the law, right? Well I didn't set out to and I didn't originally envision I would really go into objectivity when I was interested in that subject of judicial review but for all the disagreeing schools about how should judges do their work virtually everybody agrees judges should uphold the law, objectively uphold the law but they have very different understandings of what that means, of what objective law is. At the same time even while we know a decision when we don't like it, people from all different ideological stripes we know a decision whether it be a court decision when we don't like it or a personal decision they gave her a raise and they passed me over whatever, right? We're quite ready to say that was an objective, that was biased, that was prejudiced. At the same time a lot of people go around saying nobody can be objective. We're all biased, right? Everybody's prejudiced and so on. Well if we really are serious about objective law, the objective rule of law, no there's something that judges should be upholding and there is a proper way to do it then I think we have to tackle objectivity itself dead on. So part of what I try to do in the chapter is you might say puncture the mystique of objectivity because I think it's one of these concepts that's a little bit intimidating for people so they feel like well you know I make mistakes everybody makes mistakes how could we possibly be objective so I try to give an account of it that is realistic it's such I mean I paint objectivity in such a way that it is doable. It's demanding and it really is demanding but there is a difference between being biased or indulging prejudices or going by irrelevant factors and so on. So that's more to speak to why I even ended up getting into this but I just thought it would be useful to tackle what is it to be objective and then we can from there try to trace out okay how does that apply in a legal system overall and then to the more specific domain of judicial real life. Now you talk about Rand's concept of the primacy of existence which helps explain what objectivity is as a behavior as a method of thinking which is not which is a goal you don't necessarily always realize it you try to get to it right and you should try I mean that's what I'm saying you should try to well I think what you need to do to be objective is to as you put it and I put it this way in the book right it's a method of thinking it's a discipline for how to use your mind so even though we sometimes speak of objective reality strictly speaking no reality just is it's a person who can be objective or non-objective he can be lazy he can indulge his prejudices or I don't feel like getting more evidence even though I know there's some counter evidence out there and so on so I do see it very much as it's a way of directing and disciplining your mind such that you'll as I put it in the book get reality right or at least closer than well right as well as you can get it right and and here my thinking is look let's step back a minute and again ask a question about why do we even care about objectivity in any realm again in the decisions about who gets hired or promoted or gets the raise who gets admitted to a school who does the bank make a loan to is the journalist objective is the juror objective is the referee at the game last night I mean there are all sorts of domains and in which we think I know we want object why do we want it there's some either conclusion to be drawn or decision to be made and we want it made for the right reasons we want the drug researchers right to tell us is the drug effective or not does the drug have these side effects are right there's something we want to get right so that's a loose way of putting yes there's a reality you know there's there's a certain kind of answer here objectivity as I portray it is a way of using your mind that it's the way of using your mind that is most conducive to getting the right answer it doesn't guarantee that you'll get the right answer but it is I think right it puts you in the best position to know where of you speak so we're talking about objectivity for things like whether this drug is effective that seems different what you know that the underlying reality we're getting as of a different sort than it is for the law in the sense that like the drug is there's a physical thing we can measure it we can run an experiment yeah but how would we know if we're getting if we're being objective in things that are just kind of agreement among people about concepts because obviously there's enormous disagreement right if we just based it on like well lots of people disagree with me so I've got it wrong doesn't seem right or everyone agrees with me so I must have it right we can think of lots of counter examples of the agree with me that's okay no no I mean that's a good and perfectly natural question and you hear that kind of thing a lot look it's one thing to talk about physical reality drugs effect safety of automobiles or so on right it's another to talk about objectivity in the realm of things you can't see right like law or values of morality but there too I don't think we are I don't think the notion of objectivity even in the non physical or non material realm is so exotic at all I mean think back to the example of who gets the raise or the promotion well that's not I mean that's not physically testable in the same way this chemical is as a drug right but there's a bit a manager at work can make those decisions more or less objectively right he can pay attention to how the different employees people under him how they performed all year and there are much more specific measures that everybody in business out there knows right of you know was he attentive did he meet deadlines how did he deal with clients how responsive was he how creative or is I mean there are specifics that are not material in the same way you can't put them under the microscope let's say right but I think we do that in a number of realms as well so I I think it's a little harder to do but it's certainly doable and appropriate and again lots of the areas where we complain about non objectivity are about you should be paying attention to this it's hard you know it's harder in some realms I mean well a lot more comes into it at the higher levels of abstraction but I'm saying in principle the same the same aim or goal should be driving the quest to be object we want to get the best answers we can want to promote the people who are capable of doing the work who will deliver in that role we want to admit students to the school who are capable of doing the work will maybe bring other things that we want to the student body and so on so we have to identify what are the characteristics here just as the biological researchers have to identify what are the characteristics we're looking for for this kind of therapy or drug so with the example of picking the employee who should get the promotion or the raise what is the this objective method getting at because again like in the drug trials or when we're talking about like objectively looking at like say science looking at there is there's a reality and we can either understand it correctly or incorrectly and it's independent of us but it feels like the who should get the promotion seems to have a level of it's called like cultural embeddedness like we could say you know well objectively the person who should get the promotion is the one who was the most productive but we can imagine you know there have been lots of times when the person should get the promotion is the one who is the most related to the ruler you know these are these are kind of culturally contingent okay no no and again good interesting question I don't think it's a matter of what's culturally embedded but I mean you're you're right to ask what is it that we're trying to get after if it's not how this physical specimen will work right and I think the answer is going to depend on the specific you know what kind of company if we're talking about hiring promoting at a company what kind of company is it what's its main mission even all companies in the same sector right some might have somewhat different mission like a we there to maximize shareholder profit or we there to make the best damn cell phone we can't whatever it might be right but I think it's the ultimate goal of the reason for which you're engaged in hiring people promoting people in the first place let's switch just for a minute to the school analogy right what kind of school is it is it a religious institution that really cares very highly or maybe primarily about turning out good Baptists or good whatever right how high a value is that how high a value is this sort of intellectual attainment or is is a certain sort of socioeconomic diversity the goal of this school depending on what the goal is I think that sets an awful lot then well relative to that these are the relevant pieces of evidence these are irrelevant so these are the weights that they should have comparatively and not so is this objectivity then is a hypothetical imperative a hypothetical imperative if you want to do this then you know yeah in a sense I suppose I mean there's a part of me that just oh let's not talk that Kantian language but even though obviously it's the categorical imperative but I mean like that but yes I think in the sense that as I said if your goal is this if your goal is that so yeah but I think again in in this one I wanting to demystify objectivity there is no duty that God or the heavens have handed down thou shalt be objective when it's appropriate to be objective it is so for a reason for a practical reason because that's gonna help me make the best decision of who to promote who to admit to the school whether we should use that drug right I'm just trying to buy a car I'm not dealing with other people alright I need to pay attention to my income my resources my needs what I'm gonna use it for its right because that's why I want to make a good decision about which car to buy so yes in the sense that it will be relative to purpose or function well that's so that gets us to the question of when we're talking about the if then of the of the government of the state it's it's inexibly tied to what judges should do when they review the laws of the state so so can you talk a little about why in your view legal philosophy is inexibly related to political philosophy sure and let me make one further bridge connection here because I think this sort of I think very on your part yeah great great bridge from the purpose the function we're just talking about the goal and that's really important to objectivity and this is why I think we need to think about objectivity it's part of why I think we need to think about objectivity for a legal system and for judicial review more specifically because the function of the legal system or the purpose or the goal of the legal system is what's going to help guide us in figuring out how should we set up a proper legal system and then how within that should judicial review be be conceived and be conducted right so again even in this big legal realm goal function is going to be really important and that's something I think that it's been very helpful for me and my own thinking about these issues to keep coming back to what's the function here what's the role of government right so so now Trevor to get more directly to your question I think and I should say I'm not a lawyer I don't have legal training I'm a philosopher okay but from all of the hard thinking and reading that I've done about legal philosophy in recent years I don't see a way that you can detach it from at least basic questions and having some answers you know your answers to basic questions about the basic role of government which I think of as more a political philosophy question but why have government what's it for what's its justification its authority and then I think from there it will make sense at least according to if the answers are certain things to those questions it's going to make sense to have a legal system but that should be informed by what it's trying with the government as a whole is trying to do so I see a legal system as the more practical implementation of the answers to certain at least of the basic questions about the purpose and role and authority of government well you're very attuned to the moral component of this because as you write in the book we cannot know what a legal system should rule or how it should rule in order to rule objectively unless we securely understand that it should rule and why the ground on which it may rightfully wield its tremendous power and you mentioned consistently in the book that we need to remember that the government is forced and it uses power and violence against people and mostly you're not allowed to do that so you need a good reason and I think the way you think about laws that if it doesn't do this according to law that it is just force that's all it is it's just violence yeah if it's right I mean when you're making laws if you're doing so informed by your sense of the right the proper function of government right then those laws are just further means of serving that function but once any organ of the government of the legal system starts acting beyond the law you're basically acting without authority and you're not in any way furthering the mission of the of the government so then does this mean that on the part of judges when they have a case in front of them and they need to rule on this that they should be aware of what is actually law because it aligns with these first principles of government and what isn't and so decide on the basis of whether I guess decide on the basis of those first principles or is their job to take the law in the sense of like those rules written down by the legislature and objectively apply that more the latter but the answer gets a little bit complicated here okay I don't think it is for judges in order for them to properly uphold the law to play legal philosopher now I think it's a lot of fun to be a legal philosopher right but no if you're going you know if you're putting the robes on you're swearing to uphold the law not what the law should be or your better idea of the way they should have implemented those political philosophical ideals or the answers to those political philosophy questions I do think if we are to be governed by the law if we are to have the rule of law then courts like everybody in the legal system everybody works for the legal system and everybody governed in that to set we have to go by the law and as I said even if the founders let's say made some mistakes until we go ahead and have the courage to amend the constitution or something they have to judges should abide by what the law is even if they have some disagreements of it and some of the criticisms that I raise in the book of some views of judicial and of proper judicial review are critical of views that I think would give judges too philosophical a power I mean I'm all four judges recognizing the philosophy in the law but they have to recognize the philosophy that is in the law that is implicit in what was written down rather than project their own so how does this mesh then with the the notion of objectivity as we're talking about it before where if we institute the state in order to accomplish certain things rights protection and so objectively then we need to approach looking at the law with those objectives in mind right okay and so if that's then then what if the law as written runs counter directly then we should change the law but but that we have ways of changing the law right the judge should enforce it yes yes I think so because I think otherwise we would be ruled by the judges and by their views which may be sincere conscientious even correct what about what the law should be right but no no they swear to uphold the Constitution not their idea of a better Constitution or yeah so yeah I think we've got to go by that Aaron's kind of asking and I this was I was I was attending but it doesn't matter the order here to get to this question later we actually did some more the groundwork but he's and this is what this is a big question the judgment at Nuremberg question and and it's interesting for for our listeners who don't know much about legal philosophy prior to Nazi Germany which through a lot of legal philosophy and disarray because prior to that a thing called positivism had reigned which said that law was merely a rule backed by force from the state there's a few different for you know permutations of that but that was basically it and then when Nazi Germany came along these things were technically legal and the question of whether or not they were there was a higher moral power that made them illegal but in judgment at Nuremberg you have this whole horribly difficult question of the judges who enforce the laws written to put people into camps and eventually murder them were they doing their judicial role or were they doing something fundamentally immoral that they should have been held accountable for do you have a position on the judgment you know asking you the worst hardest asking me one of those questions like oh I should have thought about this some more more directly so it's a good question that movie is awesome spectacular for you hasn't seen it yeah um boy okay but anyway I'm not sure exactly what to say here there again the way I've been talking about the function of a legal system we have to try to figure out what is the proper function of a legal system proper role of government and proper authority of government when an entire legal system is premised on really mistaken and or evil principles right I mean well they didn't have the right answers to the political philosophy questions therefore they didn't set up a legal system that was consonant with that therefore that's in a sense that's not what I'm talking about right I'm talking about in a way going back to the drawing board and thinking what should a government and again some of this is the role for philosophers not courts okay but originally why have a government we need to have out those political philosophy arguments to figure out what's the role of government what's its authority what's it not to be doing you know at least by implication and then set up a you know a system consonant with that consistent in every way in terms of what the laws are how they are administered who they're administered to not oh well Aryan race you know different rules for different folks right so the whole system there was fundamentally corrupt but we obviously we have tried to learn some lessons from what similarities there are but I do and again this in a way speaks to why I think the legal philosophy has to at least appreciate the important guiding role of answers in political philosophy now we talk about you have three corner I want to get put it back into some of them so we so we can construct this groundwork with one chapter of your book is three corner stones of objectivity and a legal system which some of these we've been talking about I think we should clarify so you have a what how and a why there's many different out there's also there's written laws there's administration of those laws so so what is the what of the stone no and I do think this is a again I found it helpful just in my own thinking about judicial review and law in general so as a you know early in the book I talk about what is objectivity then okay what's objectivity in a legal system now you could write a whole book just on that but in a chapter I give this three-part analysis where I say basically what it comes down to or what it's the three pivotal aspects of propriety objectivity in a legal system or what it does by which I primarily mean the content of its laws of its rules be they the do's and don'ts directed to citizens or the do's and don'ts of what we the legislative branch may do must do may not do and so on but it's basically the content of the rules is the what in that sense it the what maybe is the simplest objectivity also turns on how a legal system does what it does how it and acts its rules how does it choose them is it just you know the so you know the dictator would be dictates or you know how we enact laws how we change laws how will we enforce them who will the person there are you know once you start thinking about it there are scores of simply sort of mechanical questions about how will this all be administered how will we change laws from time to time things like the rules of evidence when you get to court when do you get to court when am I entitled to bring somebody into court you know all of that is crucial to the objectivity of a system in part because even if you've got really good answers on that first facet of a legal system what the rules are you've written great rule you got a great constitution they're really objective really objective laws statutes but if you mess up the administration of them they're not going to do their job right and again you have to have that job the function in mind so what the legal system does how it does it which encompasses a great deal in the administration that it's not the sexy stuff but the dated okay but then also why it does what it does and by that I really mean the authority of law what gives the government the power in the first place what is its reason for being and again this brings us back to function and that I think has got to really help us answer the question of what kinds of laws should we enact and how should we enact them and force them administer them such that they are all together in tandem serving the function of government why why does the law have any authority or why does the law have any authority or when can the law have authority well that's a different book that I'm happy to talk about that yeah but you do talk about it yeah yeah I mean it's important because if if the laws are I think maybe I got from your book that if the laws are let's say the law and fuller characters characteristics so law and fuller wrote a book the morality of law where he lists he thinks about a king named Rex who just giving away commands that are that are bizarre they make things illegal in the past that sounds so far and that sounds like that they make things illegal in the past is that the name of the guy and they and they and they make things illegal on a specific date and they have all these characters they're contradictory so he gives eight characteristics law real laws can't be contradictory they can't be like all these kind of things yeah and so in that situation would those laws have any moral authority I mean would there be a why to the objectivity of why or would you be free to just break them okay yeah I don't think I don't think that sort of the model sort of the the model of fuller that you were just now talking about the sort of antithesis of what we have come to think of as the rule of law and the elemental conditions that for having a rule of law society no that would not have any claim on me any purchase on me so again the authority what I'm calling the authority of law is again a reflection of how this stems from a view of the purpose of government and even that more deeply I think ultimately is going to be grounded in certain moral values but again coming back to something that you mentioned earlier Trevor government is coercion right it's for we've got to keep in mind what are we talking about when we're talking about legal power the power to make people do things whether or not they want to I think that's a legitimate power for very limited purposes to keep you Trevor from picking Aaron's pocket you know from infringing on his rights so the authority of government comes from its being dedicated you know doing the best job it can to fulfill its reason for being what gave it its authority in the first place is you government you'll fulfill this function protect our rights so that again will serve and you know when I say that will serve to guide us that doesn't mean that answers all questions in the waters part and that there aren't some hard difficult arguments to be had about exactly how the legal system should do certain of these things but I think that function does provide the compass by which we can figure out so then your authority will only extend this far government and that should inform the what and the how of the legal system so again you've got those three facets so if government is most of what it does is force right and but it's okay when it forces people to do things that align with this goal of rights protection or whatever its particular telos was then what makes it different from me because I could say you know it's rather than being a research fellow at the Cato Institute my new purpose is to protect the rights of everyone you're sort of Robin Hood for rights right I was thinking Batman oh Batman yeah but like you know Aaron that's hilarious by the way Batman seems to be let's say a non-state right like he we wouldn't we wouldn't say he's enforcing the law he's enforcing but he usually that the back man yeah yeah but but he's maybe Judge Dredd would be a he's just right like he's we right we can stipulate that and so so how but we wouldn't let him go around doing the things that we let government do and so how do we get to that how does how does government because so it still it remains force when an individual enforces rights but it's not for simply if you unilaterally does it or he does it and it's not in the context of an immediate emergency to try to save his life for sure right right yeah um in all honesty that's an issue I want to think more about that is the real originating of legitimate government but I will say this and you know I do think it's important I do think there's a difference between having an organization an institution such as government whose dedicated purpose is and it's understood by everybody to be they're the ones who will protect rights in order to do that they will be justified in enacting those rules and enforcing them and holding everybody accountable to them that are designed to fulfill that mission you as a private individual Batman or you know whomever right I don't think you I don't think you have actually I don't think you have the same authority that somebody or some institution does when it is there in order to protect everybody's rights I mean I we the government now may have to impose some rules that you as an individual wouldn't be entitled to oppose on your neighbors but in so far as they're the ones whose job is to think about how are we gonna govern you know a few hundred million people or even obviously in much smaller community still they're gonna have to have the authority to do more than a private individual would be able to do but it's still got to be governed by what it's doing is it's you know its best effort to fulfill its mission and not overstep those bounds when we're talking about the government is people that is so one thing that kept popping in my head we're getting about judicial review which will return to work specifically what but it the question that struck me was whether or not because we we often talk about the government as some sort of you know homogeneous or clump of you know one thing as opposed to a bunch of different people to working different jobs and one of the really interesting questions that I don't think has been explored in legal philosophy a lot but I think your book kind of touches on it is discretion of different actors in the legal system because that discretion exists a example for police officers and the question of whether so police officer may decide to not enforce he might see a guy a kid smoking marijuana on the street under the stoop and he might decide not to enforce that because he's almost doing a weird type of judicial review he's like reviewed the law he's reviewed the facts and he's decided he's not going to enforce and he's to say I'm just to tell your mom on you and and now we could argue that what the police officer is doing is against the meaning and purpose of the state because he's supposed to be just enforcing all laws equally or it is putting a type of discretion in the system that he's not allowed to have and he's and so therefore his job is to enforce all the laws all the time is that a kind of weird stuff do we have a philosophy of state actors what they're supposed to do too in addition to judges who are viewing the law yeah no that's that's an interesting question I don't have a theory of state actors but I think that you know of this sort that answers this but I as usual I have a few things to say and I do think the role of there's probably scholarship out there that I'm not aware of on the proper role of discretion at different levels and layers by different agents of the legal system and there should be because it's an I think it's an important concept and I think I mean I think that a legal an objective properly functioning legal system needs some degrees of discretion for different people and it might you know be at a police officer or a judge or a prosecuting attorney right resources are limited anywhere you know whether whether they're a lot or a little they're always limited you've got finite resources to put on whatever you know the NYPD wants to focus on let's say this year or the prosecutors how many cases you know they've only got a staff of so many and so on they're always going to have to be choices made discretion is one of those terms that sometimes used in as license for arbitrariness no there's there's no room for arbitrariness in an objective legal system from anybody you know from the guy at the DMV or the police officer or the judge or whatever right so no arbitrary reckless dis you know for no good for no reason that seems to have anything to do with the proper functioning of the legal system you know that such cop would be derelict of duty but that you know the cop also has so many hours in a day and so now you know we'd want to know more about the specific sort of case you raise but I so I don't think the proper rule of law demands no discretion for any legal agents anywhere no they're always going to have to be judgments made this is one of the things I stress even in regard well in regard to judicial review and courts the best made laws the best made principles the best made the best understanding of the proper methodology for judges doesn't answer all the questions judgment is needed from human beings individuals as you say there isn't just this monolith government now it's this judge it's that attorney and that prosecuting off right they've got to use their honest objective judgment to be faithful to the law in doing you know a good responsible job of fulfilling their specific responsibilities in the legal system and that's going to involve some discretion but it would I mean I do think more work and I'm sure there's a lot of work out there that I just am not aware of but it's an important topic because it's one where again a lot of people think oh discretion you see game over it's all bias it's all personal connection it does not have to be it sometimes that sure sometimes people abuse their discretion but it can be used responsibly and objectively you brought up the rule of law which is which kind of as you said all the stuff touches on it including the discretion of state actors but you call the rule of law a moral ideal and in the book why is the law because sometimes I think that the rule of law might be overrated I don't want laws that you know so as a redhead if they made a law that cut off every redhead's hand I hope that that law is not administered equally I would really hope it's not and people who don't sound like a good idea so yeah but so would have to is have to have a substantive content so when and how is the more law a moral ideal yeah no that again really interesting question and I think most people not all by any means but most scholars of the rule of law think of the rule of law as a moral that you know not immoral but not not morally charged that but morally neutral value neutral and this is something that a lot of people like about it as the rule of law has really been touted more and more throughout the world in the last 20 or 30 years as you've got you know the IMF or the all sorts of global economic fund you know all we hear about is rule of law if you as long as your laws are clear as long as your laws are promulgated and mutually consistent not ex post facto etc there you know seven or eight or nine conditions people think then everybody can have the rule of law and it doesn't matter if you're a theocracy or a democracy or your libertarian or egalitarian or what have you right so that's a very dominant model now again it's not everybody thinks that but a lot most people do and I very much think that's a mistake and I think it's an important mistake I do go into this in the book would just say a little bit now I don't think you could even figure out what the proper so-called formal non-value oriented what the formal conditions would be without presupposing without relying on some ideas of the kinds of laws we shouldn't shouldn't have with the kinds of purposes for which laws shouldn't be used let me just give maybe one example to try to beef that up a little bit why not have ex post facto laws if I'm a theocracy you know I'm running a theocracy right and I get a sudden revelation that those laws that have been in place for a long long time everybody's thoroughly accustomed to and so on oh my god they are an affront to the you know to our God and God isn't giving me you know time to change this why shouldn't you know that expose fact oh tough luck for right so I but again it's just a quick indicator of depending on what your larger ideals are they're actually going to color what seem to be reasonable formal conditions and let me also bring this back to the purpose of government and the nature of government is coercive when we talk about the rule of law we're talking about how the laws will be made in enforced enforced literally right we're talking about something moral right if we think it's wrong to use force against people unless you know they're initiating use of force against somebody else right if we if we think there's a wrong there if we think that government power government care or coercion may only be legitimately used on certain grounds then that's got to inform even our understanding of what's essential to truly have the rule of law as opposed to the very orderly rule of thugs right the completely predictable and trains run on time rule of dictators that's not the rule of law right it's a look alike in some ways but don't be you know my preaching to some would be don't be confused by the appearance but are those categorically different if we if we have so thugs I guess that I presuppose as soon as I use that word oh no I mean no no it just presupposes some in a negative moral capability but we can imagine the enlightened dictator who promulgated rules arbitrarily himself but they were always morally just he had no apart from the fact that he's a dictator yeah well hear me but he doesn't he details he and he only enforces his will and so but he there's no democracy there's no rule it's unpredictable but it just on some sort of basic level but it just always happens to align with pre-existing moral precepts as opposed to another system that has written laws and all these sort of things that obey the rule of law in some sort of sense but is less just should we prefer a rule of law society or my asset is the question not make sense or they prefer rule of life site over a dictator even if the dictator is more just I'm not sure I fully get the compare I don't think it's well I don't think either of them is what you would want at least if I'm understanding the scenario the two alternatives as you're painting them out to the extent that the just guy is a dictator you know just as he might be wise reflective smart even getting a lot of the right to the extent though that he's taking you know it we have to go into exactly what we mean by dictator right but if he's taking freedom that is not his way from the people that's not a proper legal system so that's not the rule of law that's the rule of his very well intentioned reflective ideals right and I think something similar would go for the alternative again yeah I think I think that's true I was just because I you you at one point you get into I mean the moral premises are very important in your book and I think I'm one of the reason for a lot of air nice questions in this is that I mean Rand is very influential on you and in your book and you say all the time but the interesting thing is is why why is anarchy not okay here be or why why we have to sort of follow ourselves into this role that the state is has to be there and Aaron's question about Batman was actually the same as Roy Childs question about who's gonna if a competing security he comes in and enforces things in a more just way than does the government have to this whole question about more authority but you get to the five premises for moral and political foundations beneath the laws moral authority which I think is your answer to this question if I may be so that like though that there are certain things of the legal system has to do to respect individuals and the rights of individuals that they have yes I mean I do have a chapter going into the moral authority beneath the law and again it's a kind of bridge from answers to certain political philosophy questions to then the propriety of of a legal system and legal authority but yes I mean I sketch the idea of individual rights because of individual needs for reason and freedom as a precondition to be able to exercise that reason and but that's what that's what makes the state if the state does that it's just but if it doesn't do that it's unjust yes and so far as the purpose of government I think is to protect individual rights and these rights are grounded in our nature in a set in a sense which I try to unpack and explain somewhat in the book but yeah but that but that's why the question we just get in the judicial review now in the role of judges if it's the moral authority behind the state that gives it legitimacy and not the state claw the state then when judges are doing review should they just not enforce laws that can't that contradict those yeah moral principles no one of Aaron's first yes yeah no very much pretty much the same question and yeah but but no it's a good question but I but here again no I think courts judges have to uphold the law as we have made it even if we've made some mistakes in the making of it mistakes visa v those deeper moral principles because to even have a legal system is to say we can't go directly from conclusions of political philosophy to cop draw your gun now you know that's a graphic way of putting it but we need the intermediary layer so to speak of a legal system with all that that entails with okay we're gonna have rules we're not just gonna oh I know the answers from philosophy seminar so Trevor you're under arrest or we're declaring war on you Cuba or what it's like no if we're gonna govern large numbers of people and govern them in you know in an organized way that is most conducive to our actually protecting their rights we're going to have to have rules that everybody can know in advance such that I mean the point of having the rules is so that people know if you abide by these you're basically respecting other people's rights and then we the government don't have to get involved so I mean there's also just what what the law communicates is not simply when will I go to jail or be fined but the kinds of behaviors that are necessary for me to actually be and for us all to enjoy the benefits of living in a society in which we are respecting one another's rights but because it's not self evident oh you know government should protect rights therefore he should be arrested you should stop that kid on the block and so on we need this intermediate layer and then if we're to be governed by that is I think we should be we have to be courts should go by the law as it is they can express their reservations about what the law I mean maybe they shouldn't do that from the court but you know they can vote for who they want to when they go to the ballot box but if they think some people would change laws that they think need to be changed but they're there to uphold the law not their idea of a better law even if I might agree with their idea of what the better law would be I mean there are laws that I don't like but I think the government's got to enforce them and I you know rue the government when it doesn't do that because because that's a much more I mean much more dangerous I think in the long run to have arbitrary yeah exactly it's pick and choose it's new so how does your theory of judicial review how is it different from the other I mean there's many competing theories of judicial review and so maybe you just contrast it with say originalism or living constitution so many other ones our listeners may have heard of okay sure um let me okay briefly on living constitutionalism but then I will come back to originalism living constitutionalism though we haven't used that term has actually come up in some of what we've been talking about particularly the few times that I've said judges have to go by what the law is not what they think it should be whereas some of the advocates many of the advocates of living constitutionalism which takes in a lot of different views but I'm thinking of a Ronald Dworkin theory or the aspirationalist views of a contemporary would be Jim Fleming I love Jim Fleming he's a great guy but I completely disagree with him on this they'll speak of realizing our best ideals which is a lovely idea but I think not for the court to engage in if we want you know if we as a society want think we haven't done justice to the ideal of equality or the ideal of liberty or whatever it might be then it's for us to make some changes in the legal system but it is not for the courts again even when they are the smartest best intended and so on no they are to uphold the constitution not their idea of a better constitution originalism is take a deep breath here you know when I started out working on this whole subject about nine or ten years ago I just thought yeah how should judges interpret the law and I thought I might spend a semester maybe do an article and but it it quickly yeah because I found the question complicated I found the people I was discussing it with really interesting and I learned so much I have to say from people in legal academia learned tremendously and even while all of my first instincts were originalist and I definitely share the opposition that they voice to many of the alternative views living constitutionalism popular constitutionalism some other views as well in the end what I've come to think is the originalist makes a really important mistake that's as subjectivist as the views that they oppose and one of the things I try to do in the book is distinguish the original from the objective because I think and I obviously there are different species of originalism and there are I think cruder and much more sophisticated species from originalism and here to I've learned a lot from really smart originalists I've learned a lot from them but I for all I've seen so far I do think they and I'm speaking broadly but I think they fall into this trap of equating objective meaning the object what's the objective law with what was originally thought about something and it locks us into the mindsets of certain people and gives those people more authority than they really have and mistakes the actual objective meaning of the law now again I go into that much somewhat technical detail but I think very followable by a layman in in the book but yeah I so I just I really want to distinguish what I think is objective understanding and objective meaning from original meaning so let's apply one of these to get an answer so probably the most originalist heavy Supreme Court decision in the last 10 years is heller versus district of Columbia which is just a cavalcade of originalism on Scalia's majority opinion versus Stevens minority opinion to interpret the second amendment now what would an objective judicial review do when they look at the second amendment the right people to keep and bear arms will not be infringed with the predicate with the predicative element of in order to show the security of free state and versus how the originalists did it I don't know I hate to say that but you know gun the gun issue the second amendment is not one that I've been that interested in so I've neglected it and okay meaning that's a bad example we can choose a different one okay I mean I thought your answer be something about like looking at the right of self-defense before the right the words and the constant and it might even that might even be my answer but I'd want to think about it a little bit more but that's one that I just yeah so what was it equal protection maybe or yeah one of those that where an originalist would decide one way but maybe well I yeah I mean so why don't we why don't we say a few words about equal protection 14th amendment equal protection right and that's been in the news somewhat recently when you think about the dispute about religious exemptions for instance first amendment hobby lobby free exercise of religion hobby lobby right answers to the poor no I mean so whether it be in regard to the affordable care act and religious institutions be their private or private you know religious universities with little sisters of the poor or a hobby lobby a private business right having to fulfill the equal protection requirements of employment law and non-discrimination by giving certain sorts of insurance to all their employees or the religious free or we seem to have a conflict there we can come back to the conflict issue even separately if we want in a bit but when we think about equal protection I'm sorry I was going to say the other thing it arises recently conspicuously in regard to his gay marriage yeah right and this religious business doesn't want to make the wedding cake sorry right so again we seem to have a conflict out of that but it's well what what does equal protection mean when the 14th amendment was enacted right they had in mind the people who enacted it most people in society at that time had certain ideas of who would apply to it in what ways and women having the vote now that wasn't on their minds in 1865 for the most part right gay's getting married are lunatic I wasn't thinking that 15 years ago are you kidding right well the originalists I think and you know there may be an originalist who will correct me on this but as far as I can understand even the public understanding originalists will say we have to go by the meaning of the law which was what the public understanding was at the time it was enacted I'm saying no we have to go by what equal protection means and that means you know that I'm thinking of loving the Virginia whatever it was right I mean no those people the black and the white equal protection means they get to get married and the woman gets the vote right and yeah the guys get to get married too if this is how you're gonna you know legally award benefits to marriage and so on so that's just an example of how I think the understanding at a certain time they weren't thinking blacks education together right I mean so they have a certain conception of who who equal protection protected and in what ways and they didn't have in mind integrated education but if we've later come to think no no equal protection really means this or really encompasses this then that is the kind of thing the objective theory of law would say we've got to do and that's what that's what an objective visual opinion would basically write this in the same way we try to figure out what is equal protection yeah yeah and I mean you know there there are so many asterisks or footnotes at least clarifications I guess you might put on this the sheer fact that we today think equal protection means thus and such that doesn't mean we're right right I'm not I don't want to elevate today well this is today's opinion or today's consensus as if there were consensus right but to the extent that we can say well most people today think this versus what most people thought in 1865 or whatever I don't want to in effect privilege the contemporary over the historical because we might be wrong I mean we may be further but to the extent we have followed objective methods and that will vary on different issues right but to the extent we have engaged in truly objective thought then we're in a position to say oh no equal protection means this that was a mistake those people need to be allowed to marry one another or you know to vote or what have you so anyway that's one so what sort of characteristics should we be looking for in judges when they're appointed to the Supreme Court or circuit courts maybe they're different yeah levels which is voters as informed people the next Supreme Court position that comes up if Tara Smith was was there to say these are the judges who should be raised to the highest court in the land what sort of characteristics are you looking for that's an interesting question that you can you can take on a few levels and there are a few different kinds of responses I want to give I think I've got three different kinds of responses so let me quickly try to say a little bit about each of them one thing I want to say is you know judicial review is hard work and I think sometimes we underestimate that certainly in popular debate but even sometimes in scholarly discussion of these issues but much more so I think in popular debate which gets heated when they're you know presidential election and some older members of the court and so on and likely vacancies and so on um it's very difficult abstract work to be objective in figuring out was that a search you know did that when the police stopped that guy did that really constitute you know a reasonable search or do they have reasonable grounds or I mean think about free press right well freedom of the press does that encompass the freedom to not divulge your sources in the course of an important government investigation the answers to these are complicated and that doesn't mean there are no answers but it means it's going to take some pretty sophisticated work so even well I think voters to the extent they're thinking about the kinds of people we should want on the courts they have to appreciate that you need both real no you need from members of all of the high courts right real knowledge of the law of the history of the law of why the different laws are there because one of the things I stress in the book is the philosophical character of the law and you do want judges to understand and respect that philosophical context and trying to make out the meaning of any particular provision okay so you're going to need people have a good command of the law its philosophy its history the existing you know rules and all of that intellectual I will say and I talk a little bit about this in the book I think there are two main characteristics that you need to look for intellectually they need to be really skilled conceptual thinkers who can think in principle who are good at distinguishing the peripheral from the essential on issues because a court is continually faced with the question so is this a violation of fourth amendment is this a violation of let's say the gun rights you know second amount you know is this equal protection and the answers are hard so you're going to need people who are really good at separating the extraneous from the core okay you're going to need people with a moral character of integrity and much as we rail against the judicial activists and you know they're just making the law and inserting the law and that certainly happens and that certainly needs to be condemned that is wrong you don't want you don't as we've said about five times today right you don't want people and put judges imposing their views you also want judges who have the courage to live up to the to the Constitution's convictions and assert themselves and not simply defer and here I think the people at the Institute for Justice are doing very good work when they champion what they call judicial engagement yeah the judge you know you swear your oath of office is you'll uphold the Constitution as much or as little as that is but it is absolutely irrelevant that most people today want the law to be such and such that this decision would be unpopular or socially that's socially divisive that's beside the point the law is the point and it's going to take courage because they're going to take a lot of flack sometimes for you know turning down things that the congress and the president have enacted or have done but the blame then is on those other branches for not okay the other thing I do want to mention is you know there was a really I thought a very good piece written a few months ago by Randy Barnett and Josh Blackman in the weekly standard which you could get online and it was directly on this question what should we look for in this and I think I thought it was a very good piece and I agreed you know just about everything in it I might have had a few smallish but I mean and one of the good things they said was you know don't folk when we have these senate hearings confirmation hearings and so on don't ask about specific cases ask about are you willing in principle to overturn precedent right and ask about clauses of the constitution and what do you think that me and try to draw them out on that and I thought that was the right minded approach because it's a more fundamental more principled more philosophical approach free thoughts is produced by Evan banks and mark mcdaniel to learn more find us on the web at www.libertarianism.org