Ep. 2154 Roe Overturned: Historians Discuss the Decision

The Tom Wood Show, Episode 2154. Prepare to set fire to the index card of allowable opinion. Your daily dose of liberty education starts here.

The Tom Wood Show. Folks, if you enjoy the Tom Wood Show, it's time to go to the next level. And next level Tom Wood is libertyclassroom.com. This is where my friends and I teach all the stuff you did not get in your conventional education: history, economics, and more, the way it ought to be taught, with all the content they left out or distorted. Check it out at libertyclassroom.com.

Everybody, Tom Wood here, delighted to be joined today by two old friends and two historians I very much respect. And that's Kevin Gutzman and Brian McClanahan. Both of them teach, by the way, at libertyclassroom.com, which is my dashboard university where you can learn history and other subjects, let's just say from a non-PC point of view. You can actually learn the actual history. You can even learn the stuff they withheld from you, if indeed they even knew it in the first place.

Kevin is a professor at Western Connecticut State University and the author of numerous books. He wrote a book with me called *Who Killed the Constitution?* He's also the author of *James Madison and the Making of America*, as well as *Thomas Jefferson: Revolutionary*.

We're also joined by Brian McClanahan, who's the host of The Brian McClanahan Show, and he is the author of numerous books himself, including *The Founding Father's Guide to the Constitution* and *Nine Presidents Who Screwed Up America and Four Who Tried to Save Her*.

So, I thought we would talk about what the Supreme Court has been up to. But I rather suspect that we're going to be focused entirely on the Dobbs decision, which is the overturning of Roe v. Wade. Let's start for a minute with the politics of this. Because I have to say, I'm shocked that this happened. Because for years, I thought both sides, in a way, benefited from the status quo. Like, the insincere pro-lifers benefited because they didn't have to do anything. "Well, my hands are tied. You know, Roe v. Wade, what can I do?" A lot of people could do a lot of fundraising on the back of Roe v. Wade. So, I'm cynical, but I think I have reason for my cynicism. It just seemed like it was, and it was also a great way to keep the population at each other's throats. And all that. And plus, there's 50 years, just about 50 years, of so-called precedent involved. And so, it just seemed, and not to mention, although it seems like justices on the left are willing to do bold things, it just doesn't seem like originalists are quite as willing to do bold things. They're much, much more willing to defer to tradition, even if it's a very lame and recent tradition. So, all these factors were working against the overturning. And yet, here it is, overturned. I mean, do you have any thoughts just about the likelihood or unlikelihood of this outcome, and what this might mean politically?

Well, I mean, first of all, I think this is going to be recognized as one of the most transformational moments in Supreme Court history. Even in a number of cases that were just decided in June, people are going to look back at this point and say, "Wow, we're witnessing something that, as you said, we haven't really seen before." And I think that you're right, politically, originalists have never been able, never decided they were going to do anything like this. And I think that's what's shocking to the left. They always relied upon the fact that the conservatives were just going to be spineless, essentially. And when they're finally not, it sends shockwaves. And I do think that there was a tremendous amount of fundraising that could go on because the court would never thought, well, the court's never going to overturn this, we'll just fundraise on this consistently.

But one thing I find fascinating is that now that this has happened, you're starting to see the states. You're starting to see, in the states themselves, there are judges that are knocking down these trigger laws and everything else. So, this has now just been transferred to the state level, where it should have been the entire time. But I do agree with you, I never saw this coming. I thought, there's no way this is going to happen. But now that it has happened, and we're starting, Clarence Thomas is taking a, as attacking part of the 14th Amendment, the way it's used. I mean, that's that's amazing and tremendous. So, I'm really excited about this and what could actually happen. What do you think, Kevin?

Well, I'm going to give a more self-referential answer here. I first wrote a published argument for overturning Roe v. Wade in 1987. And it appeared in the *Daily Texan* newspaper, which is the student newspaper at the University of Texas at Austin. At that time, I think it was the second biggest paper between Waco and San Antonio.

Kevin, you talk as if we haven't all read this article. You know, that everyone's talking about the vindication of Kevin Gutzman these days. So, of course, we all know. Sorry, go ahead.

Yeah, so only, only the *Austin American-Statesman* had more circulation at the time. And the reason I bring this up is because what I've been seeing the last few days in response to the overturning of Roe v. Wade is a lot of discussion of the idea that, well, this whole conservative judicial movement is just about policy, the same as its opposite number on the left. And when I published that piece in 1987, my master's essay supervisor, Dagmar Hamilton, at the LBJ School, stopped me one day on campus and said, "You know, I read your piece, and I never really thought about it that way." That she had been the ghostwriter for William O. Douglas, one of the most left, maybe the most left-wing Supreme Court justice ever. She had ghostwritten a couple of his books. She literally had, she said she had never thought about the issue of Roe v. Wade in terms of federalism and the Constitution. She just always thought of it as a policy question.

And I went into thinking about judicial affairs, not even really having an opinion about abortion, or an opinion about homosexual marriage, or sodomy, or any of the other stuff that really agitates, um, people who are quote unquote cultural conservatives. I just always found it offensive that nine Supreme Court justices basically usurped the authority to tell us what to do about any question that came before them on the basis of their own policy preferences. So, my answer to your rumination about what you expected to come from these people who've been appointed to the Supreme Court on the basis of various presidents understanding that they were actual originalists, they were really committed constitutionalists, they weren't going to be trying to foist off their policy preferences on us from their judicial positions, that I think is, of course, the way the left has thought of it. But I, it turns out that most of these people who've been put on the Supreme Court with the understanding that they were originalists, turned out actually to be originalists. That's what this proved. So, somebody like Chief Justice Roberts has a bit of the political bug in him. But it turned out that the other people on the Supreme Court had been appointed on that basis, really lived up to it. And I think this is an augury of more good things to come. It does seem that we now have a majority, and a substantial one, on the Supreme Court of people who think that federal courts have exercised too much policy-making authority for the last hundred years, and it needs to stop. And as far as they're concerned, it has stopped. And we're going to continue to see a rollback of the judicial role across various questions for the indefinite future. Now, this, of course, assumes that there won't be three or four consecutive presidential election victories by the Democratic Party. If there were, that would be the end of it. You know, by the end of that, there would once again be a majority of, you know, Kagans and Sotomayors. But that doesn't seem likely. And so, I think we're going to see this kind of recrudescence of constitutionalism, which has been, some degree or another, on the outs in the Supreme Court since the 19th, certainly since the 1930s. So, yeah, there probably are scummy politicians who made originalist noises because it was good for fundraising and you could whip up a cultural conservative constituency that way. But as I say, the people who have been committed constitutional scholars and judges following that line, apparently they weren't kidding. So, how about that?

Yeah, how about that? But you can understand why we might have grown cynical about just how originalist the court will ever become, given that Republican politicians have claimed to be appointing such people, and then all they do is, you know, they give us Casey and whatever, you know, crazy cases like that. So, we have to talk about the way they have to come to this conclusion. Because they have to make an appeal to the 14th Amendment in the same way that the original case did. Because they have to show that the reasoning that was employed to justify Roe by means of the 14th Amendment was flawed. And so, they say that in order for the 14th Amendment to be cited, and its reference to liberty to be cited on behalf of an unspecified right, you have to show a couple of things. You have to show that that right is deeply rooted in our history and tradition, and whether it is essential to this nation's scheme of ordered liberty. Well, one of the problems with claiming that the right to an abortion is deeply rooted in our history and tradition is that abortion was illegal in all the states at one time or another. You know, so it's hard to claim that. How could it be deeply rooted in our history and tradition if it was banned everywhere or severely curtailed? So, they do start with that history. I'm not quite sure. I suppose I should know the answer, but I don't know how the other side deals with that. But that does seem to be a pretty significant blow, if you're not satisfied enough with simply, there's no mention of abortion in the Constitution, which should do it, then we have this 14th Amendment analysis. Well, first of all, what do you guys think of the overall reasoning that the court uses to say it has to make this 14th Amendment appeal, or otherwise people will think it's not really a refutation of Roe?

Well, I mean, that's a very good question. And this is where I point back to Thomas's concurring opinion on the Dobbs case. He's trying to, and I'm citing Thomas because what he's trying to do is walk a very thin line on the 14th Amendment. If you look at his opinion in the New York State Rifle and Pistol decision, which of course deals with the Second Amendment and the 14th Amendment because he brings it up, and then you look at what he says about the 14th Amendment in the Dobbs case, he's an incorporationist, but again, only an incorporationist in certain ways. And I find that that concurring opinion, I should say, with the Dobbs case, fascinating because he is going after substantive due process. And in my mind, that's the first time I can think of anybody really doing that in a way that he did it. And it set everyone on fire because he basically said, everything we've done for the last, at least 50 years, is ridiculous. I mean, the, as Kevin mentioned, you know, the, uh, same-sex marriage and all the issues we've looked at that are what we call the culture war issues, these are now all off the table because they shouldn't have been there to begin with. I mean, the court should never have gotten involved in these things. And it's a return to real federalism. So, yeah, I mean, the 14th Amendment really is the problem. And I, I find it interesting how he's trying to balance that issue out on both sides. And ultimately, in my mind, it's a disaster waiting to happen because, as Kevin points out, if you ever get another left-wing majority on the court again, and it's, it's all policy to them, it's, this is a policy arm of the government, they're going to go right back to using the 14th Amendment the way they did before, and we're back to square one again. So, that comes down to, you know, how we look at the court and what the court's going to do. And if these states can actually grow up at the spine to say, this is it, we're not going to stand for this stuff anymore. But yeah, I mean, finding the authority for an abortion in the Constitution, and now the left libertarians try to do it. Of course, there's a piece of reason where they said the Ninth Amendment did this. The Ninth Amendment allows for it. And of course, they said that as a corporation says, they are the Ninth Amendment applying to the states, the states can't do these things. There's all these unenumerated rights that you have, and this is one of them. And we know that because of Blackstone, we know that these abortion procedures were not necessarily illegal until they felt the child. And all this kind of stuff. So, they're taking a very incorporationist position with the Ninth Amendment, and that's a bad argument, but it's an interesting argument. So, again, I find all this stuff to be really exciting. If everyone follows through with Thomas, and we see, as Kevin said, we see them actually be originalists, I think you could see some real dramatic changes with federal law in terms of what the court is willing to do and not to do.

Yeah, that *Peace and Reason* was really emblematic of the left libertarian's approach to these questions. Uh, the idea that if something wasn't illegal, you had a right to it. It is, uh, nonsensical. It's a non-sequitur. So, I, of course, expected that *Reason* would come out with some kind of argument that there was a constitutional right to abortion in response to this decision. But that was laughable. I thought, I liked Andrew Yang's comment that it's hard to escape the conclusion that the court has become political.

So, I said on Twitter, I said, "Here's Andrew Yang's U.S. history lesson for us today: The court became political in 2022."

Yeah, I saw your tweet. That was funny. Thank you. I get a good one. The old man gets a good one out there. He now then. Oh, man. Hey, wait a minute. Yeah, I, I know. Uh, all right. But it is interesting to see somebody like Keith Olbermann saying, you know, the, how is the court going to enforce this decision? And all this. And so, I retweeted him and said, "We're all neo-Confederates now, apparently." You know, I mean, it's all this crazy stuff about the court now that the court isn't generating outcomes I like, it's illegitimate. And this, no argument about the actual points that the decision made, which I think are very hard to refute, but simply the outcome. I don't like. And I like when the court is simply a super-legislature that dictates to the stupid rubes in red state America how they're going to live. And they're going to live like me. And that's the way I like it. Now, it's not correct to say that this Dobbs case is simply the right wing making the court into its own super-legislature. Because what it's actually saying is, there should be no super-legislature here. You guys go decide this on the state level, where it belonged from the beginning, and where everybody assumed it belonged from the beginning. It would be a right-wing super-legislature if they had said, "We declare that there could be no abortions anywhere." Right? Then that would be it, acting as a super. I don't like the idea, really, even when it's in my favor. I don't like the idea of the court being a super-legislature. Because why would that be the most? I don't like very many political systems at all. But why would we think that it's superior to live in a system where five lawyers make all the decisions? Because that's what that would be.

Well, you're 100% right. I mean, the way you described it, where the court actually said that you have to do X, Y, and Z from a right-wing policy perspective, that would be a super-legislature for the right. But they didn't do that. One of the unhinged pieces that I read was by Ian Millhiser, who of course, it is now, I mean, he's just followed me around my whole life. Yeah, so it's fun to, uh, be snarky with him on Twitter, too. But the funny thing I found about all this is that the left has now wanted to tear down the Supreme Court. They don't want it anymore. They want to abolish the Supreme Court, or they want to pack the Supreme Court. It's one of the other. It's either, we've got to take, we've got to get rid of it, or we've got to put five more judges on it. You see what they believe when they do this. And it's because it's not working in their favor anymore. So now they want to get rid of it. And it's funny how, you know, something like this happens, and the left rediscovers, or I should say, discovers that the court can be a real problem in American history. The right has known about this for years. I mean, this is what we've been, we've flipped positions now. But, as you said, all that is happening is that the states get to decide these things. And I find it fascinating. All the people are rioting in California. When they woke up on Saturday, nothing had changed in California. Not one thing. Everything was still the same. You could still go do whatever you wanted in California, just as before the Dobbs decision. That hadn't changed. Now, of course, the, the firearm situation is a little different. But that's not what everybody's rioting over. So, it's the Dobbs decision. And in that state, nothing had changed. I mean, in many states, nothing had changed, just as it was before. And this is the disease of nationalism. It's that everything has to be decided at the center. And wait, nobody even knows that the states can do what they want. And on the meltdown on Twitter has been just fun to watch. And it's fascinating in terms of a, almost a, you know, sociological experiment, what's happening in America. But the left rediscovering federalism, or or hating it for one reason or other, is just fascinating.

Can we say a quick thing? I mean, because I, I really think the conversation could very easily just stay on Roe. But the court did, around the same time, issue a decision involving guns that involved a law in New York. And you could imagine somebody saying, you know, this is very fishy. That on the one hand, we're told that by this quote-unquote originalist court, that these are matters that, you know, most matters should be decided by the states. And we should just leave things up to the states. And so that's how they feel about abortion, where they probably feel like politically they couldn't get everything they want all over the country. So they give us this federalism stuff. But when it comes to gun ownership, well, suddenly every state has to be a particular way now. Doesn't that seem as if they're imposing their politics on the country? If they had said both things were a matter of states' rights, well, then it would be a little trickier to go after them. So what would you say to that?

Well, the distinction that they drew, that the court majority drew, was that they weren't overruling the incorporation doctrine when they got rid of the federal right to have an abortion, because there's nothing in the Constitution saying there's a federal right to have an abortion. And on the other hand, of course, there is expressed language in the Constitution about a right to keep and bear arms. So this is a distinction they made. As you and I don't think that's legitimate either. But they haven't gotten around to that question of the incorporation doctrine. I think I actually have a Facebook friend who's a Harvard Law School lawyer. I posted something on a private Facebook group about these decisions, and his comment was, "Well, if we're going to have judicial tyranny, at least it should extend my gun rights." So that's one way to see it. They're going to make up incorporation doctrine stuff about every other provision of the first eight amendments. They ought to carry it to the second amendment, too. But in the end, of course, really, there shouldn't be an incorporation doctrine at all. And we can hope that eventually they'll get around to that. There apparently aren't yet five votes for that. That would be astonishing if that happened, Kevin, because not only are there not five votes for that, there aren't even five law schools for that, right? Are there even five law professors for that? Uh, I doubt it. But the thing is, of course, that if you were a potential law professor who opposed the incorporation doctrine, why would you want to be a law professor? You're just going into an industry whose job is to flack for the New Deal, right, constitutional dispensation. So you'd avoid that. As, say, my friend's a lawyer, he's not in, he's a law professor. And it's not because he wasn't, you know, magna cum laude at Harvard Law School, he was. But why would he want to be a law professor and be the only guy on the faculty at whatever school who opposes this stuff? So that's a good point. That's a good point.

Can one of you explain the incorporation doctrine? Because I'm sure there's got to be, I would say, a third of the listeners who are not going to be familiar with that. Brian, you want to do it?

Well, I'll let you do it. I mean, I think you would do it better than me. So, although before you do it, let me say that when people explain the incorporation doctrine, it sounds appealing. It can sound appealing to some people. Well, yeah, why wouldn't we want that? That does sound like a good idea. So try and handle that objection after you, uh, explain what it is. Okay.

Well, here's a two-minute version. The first 10 amendments to the Constitution and the 27th Amendment were sent to the states for their ratification by Congress in 1789 with a preamble that said that because during the ratification campaign, various concerns had been raised about the limits or the extent of the powers that were being granted to the Congress under this new Constitution, these amendments were necessary further to clarify those limits. So, in other words, the preamble to the Bill of Rights said that their purpose was to clarify the limits of the powers of not only the Congress but the federal government in general. Not only that, but the First Amendment famously begins by saying, "Congress shall make no law." And when you get to the end of the Bill of Rights, the 10 that were ratified in 1791, you have the 10th Amendment, which makes this principle express. So, it was generally understood through the end of the 18th and then through the 19th century into the 20th that that was true. And in fact, it wasn't even controversial. So, for example, in 1833, Chief Justice John Marshall, the great nationalist of the early Republic, who never in any other case held against federal authority, wrote the opinion for the unanimous court in a case called *Barron v. Baltimore*. And in *Barron v. Baltimore*, in ruling that the Fifth Amendment takings clause was not enforceable against the city of Baltimore, what Marshall said was that everybody knew that the Bill of Rights was only a limitation on the federal government. It wasn't a limitation on states. And that included cities like Baltimore. So, Mr. Barron could not be given a financial award by a federal court under the Fifth Amendment takings clause. This understanding of the applicability of the first 10 amendments, actually the first eight amendments, continued essentially through the first decade of the 20th century. But then in the second decade of the 20th century, the Supreme Court began to say that some provisions of the first eight amendments had been made enforceable against states, and that includes subordinate governments too, against state governments, by the Due Process Clause of the 14th Amendment. So, the 14th Amendment's Due Process Clause says, "nor shall any state deny to any person the equal protection of the laws or due process of law." And when they first began saying this, it was about the speech clause of the First Amendment and the press clause of the First Amendment. So, you have in the first, well, the second and third decades of the 20th century, some cases in which the speech and press clauses of the First Amendment are held to have been made applicable against state and local governments by the Due Process Clause of the 14th Amendment. It wasn't until even later in the 20th century that the court really dove into claiming that various other provisions of the first eight amendments were enforceable against state and local governments. And what we've come to have by now is a situation in which virtually all of them. There are only a couple that have not at this point been held to be enforceable against state and local governments. I think that the claim that saying that a state could not deny to any person due process of law, the claim that that statement means that substantive provisions of the first eight amendments are enforceable against state and local governments, it's just nonsensical. There's there's nothing in the record of the ratification of the 14th Amendment that shows that. And certainly, if you read the 14th Amendment, you don't get that out of it. If the Congress had wanted for that to be what the Fourth Amendment accomplished, they could have included a provision to that effect in the 14th Amendment, but they didn't. So, I explained the burgeoning of the 14th Amendment in the second and third quarters of the 20th century by reference to the attitude of people who were justices as the Supreme Court in those days, that really the Supreme Court was another policy-making body like a House of Congress. And in fact, the chief proponent of this idea on the Supreme Court, the worst Supreme Court justice in history, was a guy named William Brennan. Justice William Brennan famously, or infamously, in Bob Woodward and Scott Armstrong's book *The Brethren*, there's an account of Brennan having a conversation with a couple of his law clerks one day, and and finally he smiled and he said to them, "Around here, I operate according to the rule of five. With five votes, I can do anything." And that was his attitude. He was going to make policy, and he did, across a wide range of areas. And most of the time, this policy-making had essentially no connection to the Constitution. He just, he just cobbled together majorities on the court to say that the Constitution required whatever policy outcome they liked. And that's why we ended up with a counter-movement from conservatives or in the Republican Party saying, "No, what we need to have instead is originalism. We need to have people who say that they're going to preserve and protect the Constitution of the United States and mean that they're going to enforce it as it ought to be enforced by any fair reading, or as people understood it was going to be enforced when they adopted a particular provision." So, that's kind of a potted account of the incorporation doctrine. Brian, you want to correct me?

I don't think Zane's incorrect. I would say that, you know, when you, starting from the beginning of this with the New York decision, New York Rifle decision, and Thomas again saying that it was the 14th Amendment that allowed for them to talk about the Second Amendment, and then later in Dobbs, walking that tightrope, and as you said, the, the Dobbs decision clearly states they're not undoing all of the substantive due process issues, it's just this one issue. Well, then Thomas says, "Wait a second here. You can't do that. If we're going to say this about Roe v. Wade, then we need to do it about everything else too." He was 100% accurate about that. But then on the other hand, he doesn't want to deal with this with the Second Amendment or the First Amendment or that's because, and you hear people saying this or writing it on social media, "Well, gun rights are in the Constitution, but abortion is not. So that's why you should incorporate gun rights, but you shouldn't incorporate the other." That's the mountain we have to climb on this. They're both the same. It's both a usurpation of power by the states. I think that the, the New York decision was a bad decision from the states. From the states, right? Right. Yeah, from the states. That's what I meant. Yes. So, it's a bad decision because it takes away the state's ability. New York should be able to have a regulation on firearms in the state. They had had it for 100 years, and nobody thought it was illegal at that point because it wasn't, right? So now you do have, in this case, the Supreme Court acting like a policy arm of the Republican Party. And Alan Dershowitz wrote a little piece at *The Hill* where he brings this up, and I think he was right about that. Why is it here that the court can be a policy arm, and here it can't? So, we need to be consistent about this. And I think that's the greatest danger in all of this, that the court will not be consistent. They need to be consistently, as we've said, as Kevin very nicely outlined there, they need to be consistently against incorporation because it is a bad legal theory that has no justification, the original intent of the 14th Amendment. It has no justification, the original intent of the Bill of Rights. Nothing. I mean, Madison wanted an incorporation amendment, and he was blocked. Uh, you didn't bring that up, but I mean, Madison proposed one, they said, "No, we don't need that." So, this is important that we get this history right, because if you don't, it's just a matter of time before they're going to come out and say, "Well, because of this, I mean, it's in the Fourth Amendment, right? So, because it's in the Fourth Amendment, the states can't do this or that." Or it's in the Third. We haven't incorporated the Third yet. That's one. I'm wondering how long that's going to take. You know, you can't have, that's that's the funny one. I think that would be hard to incorporate. But what, what do we do? We actually have been, it turns out there have been a couple of obscure district court cases about the Third Amendment. Really? I didn't know that. I mean, yeah, these Third Amendment radicals are out there running around, I guess. You know, they're, they're, um, well, I was thinking briefly of starting the Third Amendment Center, and then I just, I didn't think I'd have enough work.

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I want to read a passage from the Dobbs case because it, it's interesting to hear the court just tearing a previous court to shreds. They're just merciless in here. And we'll recall, by the way, that you can find many legal authorities who supported the idea of a right to abortion, who themselves said, "Yeah, the reasoning used is clearly ridiculous. We all see that." So, this court then, if even friends of abortion are going to say that, then this court is certainly going to say it. And so, they have a section that is meant to criticize Roe for being basically legislation. And here's what it says: "Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy, divided into trimesters, much like those that one might expect to find in a statute or regulation. Roe's failure even to note the overwhelming consensus of state laws in effect in 1868, the time of the 14th Amendment, is striking. And what it said about the common law was simply wrong. Then, after surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee and did not explain why the sources on which it relied shed light on the meaning of the Constitution," you know, which is the thing they're supposed to be doing. And then it says, "When the court summarized the basis for the scheme it imposed on the country, it asserted that its rules were consistent with, among other things, 'the relative weights of the respective interests involved' and then 'the demands of the profound problems of the present day.'" Unquote. These are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the court provided the sort of explanation that might be expected from a legislative body.

Yeah, correct. Yeah, it's, it's amazing how people just accepted this over the last, you know, half century. This is just what the court does, or even longer. I find it fascinating, again, and it's a failure of the American education system that we don't have people talking about the court and federalism and originalism. Or any originalism is just simply, the Constitution. I mean, it's right. That's all you're doing. You're not coming up with some theory. You can go back and find this. If there was no quote-unquote originalism, the Constitution is not ratified. I mean, that was sold to the states on that basis. That's the real truth of it all. So, I find that fascinating.

All right, so they overturn Roe to everyone's surprise. The question then becomes, what then does the so-called pro-choice or pro-abortion side now do? I mean, they can acclimate themselves to this situation and and have their employers fly them to other countries to get abortions so they don't have to pay for maternity leave. But I don't know what else they do. Are they, are they seriously talking about packing the court? I mean, the left doesn't take losing lying down, generally. So, what does your crystal ball tell you?

There are already things being done. So, as I understand it, about half the states had laws, what are called trigger laws, that would go into effect if Roe were ever overturned. And governors and attorneys general in numerous states have declared either that those laws are now in effect or that they would go into effect sometime in the coming week. And then there have been a couple of states in which state judges had erected species, uh, obstacles or species arguments saying that those couldn't go into effect immediately. And of course, the governor of New York came out and said that New York is going to return to its old position of being a kind of vacation spot for people who wanted to travel outside their own states and to have abortions. And then some of the major corporations are saying, well, we'll give you money to travel to have an abortion if you're our employee. And, uh, essentially, what you're seeing is that numerous of the states are not going to allow abortion, or they're not going to allow it after a certain point in pregnancy. And then others are going to continue to allow it, while some few are going to, oh, Connecticut and California are also going to be among the abortion encouraging states. Some few are going to actually make it their policy to try to attract people to having abortions in their states.

Yeah, I think in Louisiana, you brought up a judge. There's a judge in Louisiana to block the law from going into effect. Now, this is precisely what should happen. I mean, at the end of the day, this should have been going on from the beginning. You can, if you are a pro-choice person, you could look at your state constitution and say, "Well, is this a right, quote unquote, a right protected by the state constitution?" And then you should be challenging it in state court, not in federal court. That's the entire problem. It's just like if I get a red light cam ticket, I'm not going to go to federal court and say, "This is illegal." I would go challenge it in the local government where it should be challenged. The real issue is that you have federal judges that are willing to take these cases on to say, "The ball, this has federal merit, has stained this person, that's standing in a federal case." It doesn't, right? There's nothing there. So, this is a state issue. And I think that's the path they're taking. They're trying to challenge it in these states where now it's going to be illegal, and they're going after it through the state constitutions, and they're probably going to get knocked down. But I mean, that's where they go. I think, you know, I saw yesterday in Delaware, just looking at another issue, the Second Amendment issue. Delaware, the governor of Delaware is sending a whole slew of gun control legislation into effect, I think today, or it was yesterday, one of these days. I can't remember the day, but a whole slew of gun control legislation. I mean, they're banning quote-unquote assault rifles, they're doing all kinds of things. So, again, Delaware should be able to do that. And we know the left won't stop. They're just going to try to do it at the state level. And that's where this conversation should be held all across the United States. And it's just unfortunate everything has to be a a national discussion when these issues aren't national in origin.

Let me ask you this. If most law schools, practically all law schools, teach a different way of approaching constitutional law from what we just saw in this Dobbs case, where are the justices who drafted the Dobbs decision learning their constitutional law? What sources are they consulting to get a completely different view of the Constitution? Even like somebody today, if I want to know what's the correct way to understand the Constitution, I know I can't go to a law school to find it out. I know I can't buy a textbook on constitutional law to find it out. But yet, somehow these people found it out. Who are they reading? Who are their sources?

I haven't answered that. They're reading Kevin Gutzman's *Politically Incorrect Guide to the Constitution*, by the way. That is a fantastic book. It is even, I mean, even despite the playful title, because it's part of the Politically Incorrect Guide series, I read the *Politically Incorrect Guide to the Constitution*, and my first thought was, my *Politically Incorrect Guide to American History* cannot hold a candle to this thing. I mean, this, it, it's really great. It gives you what you need. Yeah, it's a good book. Everyone should read it. They should read that. *Who Killed the Constitution?* They should read that. It's a good book. I would probably say that none of the judges, justices, have read any of our stuff, but maybe they have. I don't know. Well, I know that they read Kevin's book on, on TV, you know, so maybe they read it. Maybe other people read it too. We know that prominent people are reading *Who Killed the Constitution*. Thank you both for the compliment. Another place you can go is to Robert Burger's book, *The Tempting of America*, which is outstanding. And of course, his book on the 14th Amendment is the starting point for this entire vector of, uh, scholarship, which is fascinating. I think. But it's true that there's not any law school in America where people who are originalists or anything close to a majority of members of faculty. What's going to happen though? I think probably, if the Supreme Court stays on this, in on this path for a decade or two, is that you're going to have to have people in law schools teaching this. Because what goes on in law schools is people are taught using the case method. So if you have a lot of decisions from the Supreme Court, they're based in originalism, by necessity. Aspiring lawyers are going to be taught law by reading originalist opinions, even if the professors don't like that. So that's one amusing part of what the consequences will be here, is you're going to have professors who are going to be unhappily standing before their classes and explaining opinions from Justice Thomas and Justice Gorsuch and so on. That's, that I can just, the visual of that is just absolutely hilarious to me. It's just so funny, uh, to me to think that to see that going on. He would just love to sit there and watch it happen, of course. We know that they do this all the time. They just put their own spin on it with something else, whatever it is in history they don't like. But I mean, it's, it's hilarious to think that could be going on. But yeah, I mean, I think this is where you're right. So it has to go. You have to get law schools to pick this up. And one of the real problems too with conservatives is they read too much Joseph Story. I wish they would get rid of Joseph Story being an originalist idea. That's also a problem.

Well, I take that out in my forthcoming book, *The Jeffersonians*. Yeah. I mean, it's, that's good because it's, it's ridiculous to think that, I mean, Story is a real problem in conservatism, quote unquote, because he wasn't an originalist. I mean, at all. He flipped everything on its head. And saying, "Well, the Anti-Federalists essentially said it was going to do this, so it doesn't, this is what the Constitution does." I find that argument to be completely ridiculous. But I mean, this is what he's doing essentially in his commentaries. So, yeah, unhappily, the Federalist Society gives an award that's called the Joseph Story Award, I believe it's for the outstanding, outstanding young original scholar, something like that. And the Heritage Foundation also has a, I think, a Joseph Story Lecture. Yeah. So, I know how these things happen, but they, they have happened. Oh, the name, by the way, the name of Burger's book that I referred to earlier, in case you're listening, you've never heard of Burger, it's B-E-R-G-E-R, and the book is called *Government by Judiciary: The Transformation of the 14th Amendment*. That, that's superb. That's actually the first book I read that got me to thinking along originalist lines was that, which I read in my off time when I was in law school. It's a big, big book. He has a shorter book that that lays out his thesis called, uh, *The 14th Amendment and the Bill of Rights*.

Right. Well, I actually also wrote a short book called *Federalism: The Founder's Design*, which is very interesting too. Yes. Right. He's not, it's the, the *Government by Judiciary* is not an easy read. It's dense. So nobody's going to pick it up and say, "Wow, this is, yeah, this is fun." It's just good beach reading. It's not that. Actually, that's exactly what I did. Brian, that's exactly what I did. That's you. I loved it. I thought, this is what I want to do. Yeah. Actually, that book made me decide I didn't want to be an attorney. Though, I'm two years old. That's you. Most, most people listening to this program are not going to be you and go to the beach and say, "You know what I'm going to do? I'm going to sit down and read *Government by Judiciary* as I'm hanging out on the Gulf Coast." Well, well, you know, somewhere.

Brian, well, you guys already pumped my own books for me, so you know, I had to, you know. By the way, you're saying that people are going to be reading these decisions. It kind of reminds me sometimes, the best way to become a good writer is by reading good writing, right? And the best way to become a good chess player is by playing over master games and just seeing how they played their game. And so likewise, it could well be that learning good constitutional law comes from reading good decisions.

Well, I wouldn't know because in my day, we were reading Brennan, Universal, and Warren. These horrible people. Oh, my goodness. Yeah, yeah. That was, you were learning what not to do, right? But Alito is an excellent writer. He's kind of the one of the two guiding stars of the current court majority, and really eviscerated the arguments of the other side in this Roe case. Now, he's not a good writer. It's Kavanaugh. I mean, he's, I just don't like the way Kavanaugh writes. But anyways.

Oh, I thought you said he was a good writer. I misheard you. No, no, Judge Kavanaugh. No, I just don't think he's a very good writer. He's, oh, he's, uh, it reminds me of, you know, a term paper decision, kind of. I mean, when I read his, his decisions, it's like I'm reading a term paper. But anyways, okay. All right. Well, I, I'll go ahead and I'll look at that and see. Does he have a concurring opinion here? Because I, I didn't read that when I read Thomas's. He had one. It was another decision. I was reading that in, in this whole docket, this whole slew of stuff that just came out. There was one that he was, he wrote the majority, and I can't remember which one it was, but it wasn't well written. But anyways, now that's, that's just me making a nitpick critique. So, okay. Fair enough.

Well, I'm going to put on the show notes page the links to the books we mentioned in this episode, and also a link to the decision itself, so listeners can read it for themselves. So, let's close with you guys directing people to how they follow Brian McClanahan and Kevin Gutzman. Brian, why don't you go first?

Well, you go to BrianMcClanahan.com. This is Brian with an O. And, uh, you've got, you can follow my podcast there, The Brian McClanahan Show. I've got a couple of books that deal with this issue, *The Founding Father's Guide to the Constitution* and *How Alexander Hamilton Split Up America*, which the last half of the book is more about the court than anything else. But so you can do that. And of course, you know, I teach Liberty Classroom too with Tom. So, lots of great ways to follow me out there. And I appreciate that, Tom, having me on.

Yes, I too have a website. It's KevinGutzman.com. That's G-U-T-Z-M-A-N. KevinGutzman.com. And my books are also, in some sense, related to these questions. I guess the place to start is with *The Politically Incorrect Guide to the Constitution*. As to the federalism question, the first, the chief chapter of my book, *Thomas Jefferson: Revolutionary*, is about Jefferson's insistence through his entire political career on the principle of federalism. Which, after republicanism, which was a given for him, federalism was his most important political principle. Of course, I have a also a biography of James Madison, *James Madison and the Making of America*, that shows that Madison too thought that federalism, or the idea that virtually all policy-making authority had been left in state governments by the people who wrote and ratified the Constitution, was the chief aspect of our constitutional system. And of course, if you desire other information, you can always email me at GutzmanK@wcsu.edu.

All right, and with that, we will call it quits for today. Thank you, gentlemen, very much.

Thanks, Tom. Happy to be here.

All right, everybody. That's it for another week of The Tom Wood Show. I'm going to take the long weekend for Independence Day, and then beginning next week, I've got a really good, let's say, good news kind of episode for you. There's a lot of depressing news out there these days, so it's nice now and again to have an episode covering some good news, covering a very, very welcome development. And I'm just going to leave it there. But there's a very welcome development you're going to be happy about. And I will be revealing it to you on, if you're following this in real time, on July 5th, 2022. So that's coming right up. And I hope you all have a very nice Independence Day weekend. Remember, all the links for today's episode can be found at TomWoods.com/2154 for your Independence Day contemplation. And I'll see you next week.

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