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Everything You Need To Know About Neil Gorsuch (Including Roe v. Wade)

Libertarian legal giant Randy Barnett says Trump's first Supreme Court nominee is a serious, smart guy. But will he restrain government?

Georgetown Law's Randy Barnett sat down with Reason's Nick Gillespie to weigh in on Trump's nomination of Neil Gorsuch to the Supreme court.

Barnett said he was cautiously optimistic about Gorsuch. "Of all the people on [Trump's] list, he was certainly near the top," Barnett said. Gorsuch, he says, is well-read, smart, and a staunch defender of originalism like Justice Scalia.

"There's the old 'framers intent,' which people say if they don't know what they're talking about," Barnett said. "Gorusch says 'original public meaning,' which means he knows what he's talking about" when it comes constrained interpretation of laws.

Barnett said he believes the addition of Gorsuch to the Supreme Court could have a significant impact on whether or not a reinterpretation of abortion rights is in the future. "Roe v. Wade is not settled," Barnett said. "Could [a decision] happen? I think it could...in the sense that it's been contested since it was decided. As a result I can seem them undoing it and sending [the issue of abortion] back to the states."

Barnett's latest book is Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. Go here for video and text of our interview with him about that.

Edited by Mark McDaniel. Cameras by Josh Swain and McDaniel. Music by Simon Mathewson.

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  • Morning Wood for Sloopy's Mom||

    Oh, Eddie, where art thou?

  • Riven||

    Fascinating. No, really. I'm just riveted.

    How about something on Sloopy's mom?

  • Lee wishes he made the list...||

    And Hail Rataxes just got banned, at least until the next incarnation.

  • John Titor||

    How are you sure?

  • Riven||

    They retconned the AM links. If you go look, all the comments it had aren't there anymore.

    That's a bannin'.

  • Hugh Akston||

    Hopefully they'll get me next.

  • Riven||

    Only if we're very, very lucky ;)

  • John Titor||

    Well what do you know, there is a line that can be crossed.

  • Lee wishes he made the list...||

    It got into personal attacks on sloopy.

  • JR Robble Dobbs||

    It's so hard to tell, I only caught a couple of comments from Hail Rataxes. I thought it was Jokes. Doesn't he know, you don't go full personal.

  • Florida Hipster||

    I though maybe it was his antiemetic remarks what did it.

  • Swiss Servator||

    yeah, saying "burn in an oven kike" is a banhammer.

  • Emotional Support Golem||

    "I though maybe it was his antiemetic remarks what did it."

    You mean, he suggests that he doesn't like puking?

  • Episteme||

    They retconned the AM links. If you go look, all the comments it had aren't there anymore.

    Barnett said he believes the addition of Gorsuch to the Supreme Court could have a significant impact on whether or not a reinterpretation of H&R is in the future. "AM links are not settled," Barnett said. "Could [a decision] happen? I think it could...in the sense that it's been contested since it was posted. As a result I can seem them undoing them and sending [the comments] back to the threads."

  • ||

    Nicely done.

  • Hail Rataxes||

    You mean Haii.

  • Zeb||

    Yes, that appears to be who was banned.

    So I'm assuming you are the one posting when Hail Rataxes isn't making gratuitous personal attacks and generally being a piece of shit?

  • Volren||

    So Haii was full on asshat and Hail keeps it within normal parameters?

  • Zeb||

    I don't know. I only noticed that there were two spellings today. But that's my guess at this point.

  • Trshmnstr hates nurse beaters||

    Haii Rataxes appeared a couple days ago and was the overtly anti-semitic one.

  • Zeb||

    Someone using one of those handles has been stalking certain commenters with gratuitous insults and attempts to provike for a while now.

  • Trshmnstr hates nurse beaters||

    I think there is somebody doing all the sock hopping between the uppercase i accounts. AmSock, Haii, etc. The common denominator is an intimate knowledge of the personalities of the real accounts and a crazy overexaggeration of their quirks.

    There's a difference between regular trolls and some of the mentally unstable folks that come wafting through here. Hihn, Shreek, AmSoc, trueman, and Tony are run of the mill trolls. Tulpa, lowercase i, Mary, and White Indian are mentally disturbed individuals.

  • Trshmnstr hates nurse beaters||

    uppercase*

  • Ceci n'est pas un woodchipper||

    You sure you got Hihn in the right column?

  • Chipwooder||

    Roe v. Wade isn't settled? ENB's going to be hitting the bars early today.

  • ||

    Not to say anything Nick but you have to respect why people are a tad annoyed with Reason at the moment. For years this publication covered (mostly via Balko) police abuse stories. Now that someone close to the magazine's community has faced such abuse, you guys decline to cover it?

    Oh.

    "Swiss authorities are currently investigating 480 suspected jihadists in the country."

    http://www.thegatewaypundit.co.....ked-video/

    Switzerland! Imagine the USA! Anyway, just thought it was worth noting. Which begs the question: Why even let it get to that point. All it takes is just one of those 480 suspected to wreak havoc.

  • Raston Bot||

    who got fucked over?

  • Riven||

    Sloopy's mom.

  • Swiss Servator||

    *reads in alarm*

  • Scarecrow Repair & Chippering||

    Let's ban all rakes because some damned clown might step on one.

    Let's ban all bathtubs because some fool mom might let a baby drown in one.

    What the hell is libertarian about collective punishment for future crimes?

  • Gleep Glop||

    I've often heard that Roe vs. Wade is horrible constitutional law but I've never seen an essay explaining why.

    Any law types care to chime in on this topic?

  • Lee wishes he made the list...||

    I'm not a law type but I play one on the internet.

    My general take on it is that abortion is either a medical procedure or murder. Murder is an issue left to the states and as such, the question of the legality of abortion is firmly within their sphere. RVW federalized the issue.

  • ||

    It's this in combination with what Hugh says, below - i.e. RvW is based on a right to privacy that presupposes that abortion is a "medical procedure" and not "murder." A "Right to Privacy" wouldn't extend to you murdering someone in private.

    So, regardless of whether or not you support abortion rights (personally I do), RvW sidesteps the fundamental issue.

  • afk05||

    I'm no legal expert, but if the government can force a woman to be an incubator for a dependent organ (fetus) that she does not want, can harm her, or will die anyway (genetic fatalities), than the government can force people to donate organs or have a say in what happens to their medical choices. I don't think you can separate one from the other. So regardless of moral issues, from a liberty issue, banning abortion gives the government control over your body.

  • Hugh Akston||

    IANAL but the majority opinion rests on creating an affirmative (and kind of unenforceable) right to privacy out of a "penumbra" of enumerated rights. No matter what you think of abortion as a procedure, privacy isn't really the core issue.

  • Florida Hipster||

    Privacy is a right, unless you use the internet or telephone.

  • robc||

    Or earn a paycheck.

  • ||

    While this may not answer your question, I always felt this article from 2005 was interesting. I could have sworn there was a longer version but here it is anyway:

    http://articles.latimes.com/20.....abortion14

  • Robert||

    If you read it (unanimous, no less) & compare it to most other appellate opinions, it sticks out as unjudicial, more like some people explaining why they ordered a particular set of options on their car.

  • Robert||

    Ach, now I see it was 7-2.

  • esteve7||

    OT: http://thefederalist.com/2017/.....qus_thread

    I wonder what my FB would be if I posted this: If all you're using Facebook for is to yell into the digital void about politics, you will find your audience for such rants is getting smaller by the minute. Sorry, random friends from all walks of life: I just don't care what you think about Donald Trump today.

  • Trshmnstr hates nurse beaters||

    My solution, and that of many friends, has been significant or total disengagement from the social network, shifting usage to Instagram instead to catch most of those important baby and kid pictures.

    Yup, I'm following the same path as the author. I started the process of de-Facebooking a couple years back for the same reason as the author (what's the point in unfollowing people on Facebook when you still want to see some of the stuff they post?), but have always held onto my account by a sliver, because it is my primary vehicle for staying in touch with a handful of extended family and old friends.

    I deleted the app from my phone last September or October, and I deleted the messenger app from my phone a couple weeks back (for lack of use). I downloaded a firefox extension that filters out a bunch of political stuff on facebook, and I unfriended over 100 people who either had too low of a signal to noise ratio or I hadn't interacted with in years.

    I'm still sitting at that point where I'm not entirely sure what I want to do. There is still that handful of friends and family members who communicate with me solely through FB, but I maybe check my account once every couple weeks now.

  • Episteme||

    Send the case of Hungry v. Bored to the Supreme Court so that we can settle this pressing question once and for all?

  • Florida Hipster||

    Now say "Feed me, Seymour!".

  • Episteme||

    Now you're off the hook, your job being done, and can walk behind him making embarrassing fart noises or something?

  • LynchPin1477||

    I'll preface by saying that I'm anti-abortion/pro-life/whatever.

    My ideal scenario from a libertarian, procedural, and institutional perspective is for SCOTUS to overturn Roe v Wade with the following reasoning:

    1) A woman has an absolute right to make reproductive choices for her own body
    2) The introduction of a fetus raises the question of whether a second person's rights to bodily integrity need to be considered. If so, then abortion violates that right to bodily integrity. If not, then abortions are protected.

    ...

    Here is where it gets tricky. Does SCOTUS make a decision on when a person becomes rights-bearing? There is no Constitutional guidance for how to make that decision. But do we really want that sort of thing subject to legislation? But do we want it subject to the whims of 9 unelected judges? An amendment seems like the best solution but SCOTUS can't force that on the people or the states.

    I don't have an answer but I would like to see SCOTUS at least force the core of the issue to the fore.

  • Not a True MJG||

    They just punt it to the states' police powers, right? I haven't watched the video - and no transcript! - but I imagine that's what Barnett is thinking when he talks of "sending it back to the states." I don't think there's any (simple) justification for making abortion a federal crime, or for the federal government to specify how the states must punish doctors and mothers.

  • SugarFree||

    Yes, it would become a hodge-podge of different laws, so with no restrictions in some, others with pre-implantation bans. It's not the nightmare scenario that feminists make it out to be, but it would probably be bad for the GOP on the national level as women have to try to smuggle themselves over the border to a free state to get an abortion. And the shitshow that will occur when the no-abortion home states do something stupid to stop them.

  • The Last American Hero||

    Given that about 2/3 of the country seems to support abortion in some form or another, I imagine it would be legal in about 48 or 49 states and the nuances would deal with things like parental consent laws, how many weeks out you could go, and how much the taxpayers would be on the hook for.

  • Not a True MJG||

    Given what some state governments have been passing over the last few years, I don't know why you think it'd be legal throughout the south. That 2/3 support abortion doesn't mean that 2/3 in every state do, or that the people who support it are politically active or powerful enough to keep it legal in those states.

  • Zeb||

    Yeah, seems likely that more than one state would ban it entirely tomorrow if they could get away with it.

  • ||

    I think most states would move to a European style system with vary week restrictions (all lower than ours of course, but we're the extremists) that require a doctor's certification that it is medically necessary past that point in pregnancy.

  • Zeb||

    Yes, either it's a right protected by the Constitution, or it's a matter for states to deal with (or not) in their own criminal laws and medical regulations. A federal abortion ban (by amendment or statute) would be a terrible precedent.

  • LynchPin1477||

    The counter argument to just punting it to the States is that, if we are going to have a Federal government, then it ought to decide just who its powers and protections extend to. Letting the States define who is rights bearing gives the States the power to deny Constitutional protections to certain groups. I thought that approach was abandoned circa 1865.

  • LynchPin1477||

    That last part came off as unintentionally snarky.

  • Zeb||

    I don't think it's a good idea to have the government, particularly the federal government, simply declaring the "right answer" to an ongoing philosophical and scientific debate that is far from resolved. It is pretty well settled among the vast majority of people (in the US anyway) at this point that all people are full persons with all applicable rights from the moment of birth.

  • Barbara Yarhead||

    Not so much abandoned as enforced via the end of a rifle. If the North didnt want to tolerate the slavery that it had CONSTITUTIONALLY permitted during the formation of the US, then it had two options to resolve the dilemma. It could try to change the Constitution or it could secede.
    The South realized the hopelessness of amending the Constitution and PEACEFULLY seceded.
    At this point, the issue was resolved. But Lincoln was a piece of shit who decided that states who voluntarily joined a federation could never leave it. That is just insane.
    You can oppose slavery and still believe in federalism. You don't HAVE TO give both of them up.
    The South seceded because of slavery, there is no doubt about that, but a war was fought because Lincoln was an asshole.
    The North could have easily amended its constitution to remove the dregs of slavery after the obstinant departure of southern states. The North could then freely and legally aid, abet, and accept runaway slaves without qualm.
    It's frequently forgotten that Northern states complained that their states rights were violated when they had to respect the CONSTITUTIONALLY protected property rights of slave owners.
    A core belief, missing from many constitutions, is the right of association. Nations that ignore this belief are guaranteed the strife we still see today.

  • kbolino||

    Look, I like a good Northern narrative bashing as much as the next man, but "PEACEFULLY seceded" is not correct. The South fired the first shots of the war, at Fort Sumter.

  • Barbara Yarhead||

    After Lincoln had already been given ample opportunity to abandon the fort. The South even offered compensation for federal properties in their territory.
    Lincoln's decisions made perfect sense because he did not believe in secession. The decision to fire on the fort was not made in haste.
    And again, Lincoln still did not need to fight the war. The South did not invade the North.

  • kbolino||

    The decision to attack the fort may not have been made in haste, not that it much matters to my point, but the decision to secede was, which is why the fort remained in U.S. hands even though the S.C. government no longer recognized the U.S. as supreme sovereign. South Carolina seceded at a time when they knew the outgoing U.S. President couldn't/wouldn't do much to stop them and the President-elect was opposed to their secession. They purposely avoided any negotiation before the secession and were themselves itching for a fight after seceding (which they thought they could win).

    Attacking the fort was aggression. No doubt Lincoln was uninterested in surrendering the fort, and maybe he even intended to provoke the South into attacking it, but that doesn't excuse the attack. No, the South did not invade the North; but the forces of a sovereign government attacked the forces of another sovereign government. That is called a declaration of war.

  • Zeb||

    The only thing more tedious than abortion fights is Civil War fights.

  • Not a True MJG||

    I guess that's right: if they are rights-bearing persons, it would be a violation of due process for the states to look the other way as they are deprived of life. But I don't see why the feds must decide one way or the other as to when the unborn are persons.

  • Vernon Depner||

    If a fetus is fully a person, then wouldn't a woman's expulsion of an unwelcome fetus from her body be an act of self-defense?

  • Vernon Depner||

    "I don't see why the feds must decide one way or the other as to when the unborn are persons."

    The Constitution already excludes the unborn from citizens' rights. The 14th Amendment says "all persons born and naturalized", not "all persons conceived".

  • Not a True MJG||

    I was going to say that, but I checked the wording; technically, it is only saying persons born with regard to determining citizenship. When talking about due process, it simply says no state shall deprive any person of due process, nor deny any person in its jurisdiction equal protection. So, one could argue an unborn may still be a person under US jurisdiction, but is not a citizen until born.

  • Vernon Depner||

    But in practice, prior to the amendments that ended slavery, slaves were denied ALL rights, even though they were "persons" under US jurisdiction. It seems like rights and citizenship were seen to go together then.

  • Ceci n'est pas un woodchipper||

    The "person" bit is the problem. If a fetus is a person, it has rights. But by what criteria do you determine personhood? It's tough to find a definition that doesn't either require some fuzzy thinking or wind up in a situation where you're excluding people in persistent vegetative states or even comas from the club as well.

  • Vernon Depner||

    In fact the law does recognize the necessity of denying certain rights to people in impaired mental conditions. People in comas and vegetative states and those with retardation, dementia, and severe mental illness are routinely treated in ways that would be considered rights violations for someone mentally competent. That includes killing them in some cases.

  • Vernon Depner||

    If a fetus is a person with rights, that doesn't settle the abortion debate. It would still not be clear that a fetus has the right to occupy a woman's body without her consent. No other "person with rights" enjoys that privilege.

  • Awakened||

    I believe the woman consented to a fetus potentially occupying her body when she consented to the sex act itself. As they tell us in school, nothing's 100% safe except abstinence! Therefore, abortions due to rape (non-consent) would seem to be legal under this logic, and abortions due to consensual sex would be considered murder. That's the fuzziness of the issue- the fact that the same thing can be defined as life or not depending on the situation and the fact one body is inside another.

  • Robert||

    What's wrong w excluding those in persistent vegetative states or comas? Like they care?

  • Zeb||

    I'd like an amendment that actually enacts an explicit right to privacy. I'm quite happy with the status quo on abortion, but I do agree that Roe v. Wade is a questionable decision.

  • Not a True MJG||

    I'm not quite sure what a constitutional "right to privacy" would practically entail, especially in today's age where privacy is greatly diminished, due to both government and private entities.

    Also, how hilarious is it that the most civil and productive comments section in a week is in a post on abortion?

  • Zeb||

    It is funny. It seems like a lot of people have taken the same approach to abortion debates as I have lately. Don't argue about the morality of abortion. You aren't changing anyone's mind on that. But discussing the interesting legal and philosophical issues that surround it can be more interesting and productive.

  • Zeb||

    And on the right to privacy, I guess it is kind of tricky to really define. And to people who believe that abortion is exactly morally equivalent to murder, I suppose it still doesn't help. I don't think anyone will argue that you should be able to murder someone in the privacy of your home.

    I'd start defining a right to privacy by saying that government or law enforcement has no business in your home for any reason unless there is compelling reason to believe that you are doing something there that harms another person.

    Basment rape dungeon: not protected.
    Growing some weed or having a plural marriage: protected.

  • Zeb||

    And then I suppose there will be the people who insist that a right to privacy also means that Facebook shouldn't be allowed to target you with ads, or that it means a "right to be forgotten".

  • Not a True MJG||

    Is any of that not covered by the 4th amendment? We are seeing how far it can be stretched with today's technology, and sometimes it's not always in the individual's favor, but that basic liberty is already enumerated. If you mean "in your home" in a figurative sense of regulating your behavior, I don't see how that would fly. In the best case, you're asking for the Single Libertarian Rule that will restrict all govt by the NAP; on the other end, nothing changes. Growing some weed doesn't hurt anyone, but if it's against the law, I don't see why any government or court would concede that the illegal behavior is protected by doing it in your home.

  • Zeb||

    Cops can get a warrant if they have reason to believe you have a dime bag in your house (in most states).

    In the best case, you're asking for the Single Libertarian Rule that will restrict all govt by the NAP

    Of course that's what I'm asking for. That's always what I'm asking for.

    A right to privacy doesn't mean much if it doesn't invalidate laws that involve unreasonable invasions of people's privacy.

  • SugarFree||

    I think there is an implied right to privacy in the 4th. If the government has to meet certain due process hurdles to violate your privacy, then you must have a right to it in the first place.

    Much like the 2nd, I think it wasn't more clearly defined because they couldn't imagine a future where people didn't want to keep weapons for protection or care about keeping their expressed thoughts and property to themselves.

  • Zeb||

    I'm thinking of things like the decisions that made pot more or less legal in Alaska well before any statutes actually made it so. As I understand it, that came from an explicit right to privacy in the state constitution. Weed is now more or less legal in Spain and some other countries for similar reasons.

    The 4th amendment does provide some right to privacy. But in cases of things like using or producing drugs, or being married to multiple people, it doesn't seem to apply. A strong right to privacy should completely protect people from punishment for doing certain things in their own private spaces, not just make it slightly harder to enforce certain invasions of privacy.

  • SugarFree||

    Oh, I agree, I just don't see how we go about that.

    And, of course, the constant attacks on the very idea of privacy because it is the basis of RvW don't help. RvW was decided on the basis of privacy because of Griswold, which should have never been before the court because no state should have been able to outlaw contraception in the first place.

  • kbolino||

    no state should have been able to outlaw contraception in the first place

    Why? Such a matter, even under a broader heading, is not addressed in the U.S. Constitution. A straight read of the Tenth Amendment would say that, therefore, any state, in accord with its own constitution and laws, retains such a power as to ban the sale of contraception.

    Should Connecticut-qua-Connecticut have banned the sale of contraception? I don't think so, and were I resident of the state I would vote against it. I doubt the law that was struck down would have even survived another decade on its own. Hell, if it were up to me, I'd pass a constitutional amendment enshrining a right to commerce. But just because I don't like it and think it exceeds my view of government's rightful power doesn't mean it exceeds the government's lawful power.

    This is the problem with results-based jurisprudence. Of course, as a libertarian, I want people to be free to buy and sell everything short of other people. I want that to be a legal principle. But it's not. It should be, but it isn't. And while a right to privacy feels warm and fuzzy, one should look askance at it precisely because of how fuzzy it really is (apologies for mixing metaphors). We have seen the government exceed its powers time and time again because of the doctrine of "expectation of privacy". And where is the privacy right to buy and sell guns?

  • kbolino||

    And where is the privacy right to buy and sell guns?

    ... or drugs, for that matter. How is it that your right to privacy governs contraception but not medication? Even if your sole intent is to get high as a fucking kite, how is that not a private transaction between a buyer and a seller?

    I suppose that it is not a weakness of the right to privacy itself. A right to commerce could be equally subverted, since the underlying mindset is results-oriented. But that just galls me more; people spit in our faces and tell us it's raining. It's not commerce, it's privacy, but privacy also means whatever the fuck we want it to mean. The right to privacy looks very much like a FYTW to me, but it just happens to work out in our favor--sometimes.

  • Trshmnstr hates nurse beaters||

    This is the problem with results-based jurisprudence.

    This. However, I'd argue that results-based jurisprudence is inevitable. Rule of law is a fiction, and there is nothing about a piece of paper that truly binds a judge. To the extent that they follow the intent of the paper, they are simply inhabiting the intersection between that paper and current "common decency."

  • Robert||

    Also, there's nothing about a judge that binds anyone. Freedom is what you can get away with.

  • Alcibiades||

    Does Nick have a cold?

  • The Last American Hero||

    He's sick. Sick of Donald Trump-itler that is.

  • Alcibiades||

    If he is, he needs to be well, Nick is one of the best.

  • Uncle Jay||

    RE: Everything You Need To Know About Neil Gorsuch (Including Roe v. Wade)
    Libertarian legal giant Randy Barnett says Trump's first Supreme Court nominee is a serious, smart guy. But will he restrain government?

    No, he will not restrain government any more Ruth Ginsburg would, but only for different reasons.

  • Cavadus||

    Literally all I want to know is the % in which he sided with the state over private citizens.

  • MarconiDarwin||

    Randy Barnett is a libertarian giant?

    LOL. He is what most Republicans at volokh identify themselves as so that they do not look totally rightwing

  • dchang0||

    Goddamn it, Nick--this is practically unwatchable with all the "mm-hmm," "yeah," "right," "mm-hmm" interjections you keep making! It's like a continual laugh track going on in the background--distracting and annoying.

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