Antonin Scalia - A Matter of Interpretation: Federal Courts and the New Law.
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[The following is a mediocre transcript.]
Yuta 0:16
So this time we are reading a text by Scalia, a short text, and it's in the book called a matter of interpretation by Scalia. And in the book he explains his general legal philosophy, I would say, in an accessible way, I would say. And so I'll just quickly outline his argument, which is, he starts off with talking about the common law and how law students are taught the law through reading about these cases and then thinking about what a judge would say. Based on these cases, and when the judge what they would decide as a judge, and then talks about how laws kind of built up through these decisions by judges, and then
Henry 1:10
yeah, I think you're probably going through this quickly. But this is a thing that I think a lot of people are not super familiar with. So it might be useful to explain it a little bit. So what is common law when you talk about that?
Yuta 1:23
Yeah, I didn't know much about this subject before reading about it. So I think what he's saying is that common law is the law that gets built up through the history of judges citing cases, so it's not like a law that was signed by some Parliament or something like that.
Henry 1:47
It's decided by precedent.
Yuta 1:50
Yeah.
Henry 1:52
And precedent is continually refined over time. And essentially, the laws coming from the minds of the judges.
Yuta 2:02
Yeah. And he writes about I have a quote about this. And he's writing about the way that common law was built up in England, and he says "all of this would be an unqualified good, were it not for a trend in government that has developed in recent centuries called democracy."
Henry 2:24
Yes, that's a great line. This is
Yuta 2:26
Yeah, this is his basic argument, which is things like statutes, which are laws, I guess, that are written by Congress, aren't like the common law. And they're supposed to reflect, you know, the will of the people in a way. And so it's not up for the judges to decide what the law is. It's up to the judges to just interpret what the law is. And yeah, he talks about maybe the training of people in law schools is a little opposed to how they should be interpreting the law in some other contexts,
Henry 3:12
because the education in law school starts off with an analysis of this case law, the common law,
Yuta 3:21
yeah, says like most classes in the first year, not based on this method,
Henry 3:25
as opposed to interpretive law where you're reading side of the Constitution or something like that, a legal document that needs to be maintained. Yeah.
Yuta 3:48
So he describes the opposing view as the view that prioritizes the intent of person who makes laws. So he says like, in a lot of cases, lawyers will. When they go in front of the Supreme Court, they'll talk about the history of how the legislating legislation came to be and kind of what the congressman at the time intended and kind of the debates that they had while making the law, and he says that that should not be what decides the interpretation of law. And says, like what should be prioritized is the letter of the law. And he distinguishes two kinds of intent. He says, like the subjective intent is what people think the law givers intended. And he says he objectified intent is kind of the intent that you that a reasonable person would gather from reading the texts of law. So just the text of law,
Henry 4:55
right. And I think that people listening as well here will be like, well, what is a reasonable person? mean, and I think that that's up for debate. But that's a concept that is not, you know, strictly defined in legal terms.
Yuta 5:09
Yeah. And in a lot of cases, it's pretty obvious what a reasonable person would breed. But yeah, in some cases useful. You have to decide maybe No, no.
Henry 5:20
But there is a I think that this is an interesting split. That is relevant, because there are some arguments that end up saying, well, then everyone is textualist by this definition, but I think the the interesting split is between how you justify your interpretation of the law, because on the one hand, it doesn't matter at all what a reasonable person thinks. So you wouldn't argue about what a reasonable person is. On one side, you're just saying, What did the person who wrote the law, man, it doesn't matter if they're reasonable or not? And you might think, like, well, they meant it in a certain way. That applies very differently now. They did when they wrote it, for example, whereas deduction aside is saying, but it has to be up to a reasonable person in general.
Yuta 6:09
way. Okay. The way you phrase that I don't maybe I disagreed with some parts of it. But I'll lay out what Scalia said first,
Henry 6:16
so we're clear we can get to more of our talking about it later. Yeah. So,
Yuta 6:22
um, one of the comments he makes is that there is no the intent of the law maker because there's no law maker. Like if you receive a letter from someone, there's a writer, and there's an intent behind it. But if it's a lot, you know, there's like, now there's thousands of people involved. Most congressmen don't even read the legislation. Maybe member some members of the committee have heard summaries of the legislation at best, it sounds like and then the votes kind of are usually split. It's usually Not unanimous and so it's he says it doesn't make a lot of sense to say there's one intention. And he Yeah, kind of says there's basically no subjective intent.
Henry 7:14
I think that's a good word to use to distinguish it. There's the subjective attend. And then there's the reasonable intent, or what did you call it?
Yuta 7:21
objectified and objectifies that is our he that's his word.
Henry 7:25
Yeah. He gives us a dialogue as an example of the sort of ambiguity of intent that is occurring in the legislative process. And it ends with this quote by Mr. Armstrong, it's Mr. I'm sorry, Mr. Dahle, talking about a or a congressman and someone working with them talking about this bill that's being proposed. And it ends with us. Mr. President, the reason I raised this issue is not perhaps apparent on the surface, and let me just say it, the report itself is not considered by the Committee on Finance. It was not subject to amendment by the Committee on Finance. It is not subject to amendment now by the Senate. If there were matter within this document, which was disagreed to by the Senator from Colorado, or even by a majority of all senators, there would be no way for us to change the report. I could not offer an amendment tonight to amend the committee report. For any jurist, administrator, bureaucrat, tax practitioner, or other who might chanced upon the written record of this proceeding. Let me just make this point that this is not the law. It was not voted on. It is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute. So just one person in this process complaining about how almost no one knows anything about the the contents of this document, and the people that do know only know very sparse parts. Yeah, and there was little way for them to change any part of the document or to interpret it or do anything.
Yuta 9:04
The machine funny. You're just writing that down.
Henry 9:08
Oh, yeah, since this was transcripted. But the point is just that. Yeah, it's a there's not just one person behind this that knows what it was meant to be written. Yeah.
Yuta 9:20
Hopefully the lawn doesn't abolish America.
Henry 9:24
Right. But then the the result, obviously, is that this, you know, written piece that was pure occurred in some way becomes the law of the land. Yeah.
Yuta 9:34
So let's do an example. I'll just go through an example quickly, which is the gun example. Oh, yeah, this one. So he says that there was some statute that banned the use of gun or I think had harsh penalties for using a gun during
drug transaction
Henry 9:58
and drug trafficking. The use of firearm.
Yuta 10:01
Yeah. The and he wrote a dissent on that case, because the majority decided that a gun was being used in a case where the gun was used to barter for drugs. And Scalia says reasonable person would read the use of a firearm as meaning the use of a firearm as a weapon, not as a, you know, as the bartering tool.
Henry 10:28
Yeah, this was this was the specific circumstance just so that we're talking about the same thing. The statute at issue provided for an increased jail term if, during and in relation to a drug trafficking crime. The defendant, quote, uses a firearm, unquote. The defendant in this case had sought to purchase the quantity of cocaine. And what he offered to give in exchange for the cocaine was an unloaded firearm, which you showed to the drug seller. The court had the court held I forgot to say The defendant was subject to an increased penalty because he had, quote, used a firearm during and in relation to a drug trafficking crime. Unquote.
Yuta 11:09
Yep.
Henry 11:10
Which he dissented to this case, but it was majority he lost it. Yeah. Now on
Yuta 11:17
I think the thing that struck me reading this is I thought the writing was so good. And I read this for cost. And I'm like the best writing and Fred, for a class, just terms of the style of the of the prose, and it's just very nice to read. That's why I think we're quoting it more than we've quoted anything else. Yeah, I have one more. Quote, well, maybe a couple more above it. Here's one.
Henry 11:46
Well, do we want to mention the significance of this example?
Yuta 11:51
I think I explained it. He says that the guns are reasonable person would read the law as banning the use of guns as a weapon, firearms this weapon, right?
Henry 12:08
whereas it was not literally written within the law and maybe wasn't intended by the person who wrote.
Yuta 12:17
Who knows? Yeah, although he says that that part is
irrelevant,
Henry 12:24
right. So he's already put himself on the side of saying the tax matters. And now he's trying to say the tax matters, but in terms of a reasonable person's interpretation, not literally to the letter of the law.
Yuta 12:38
Yeah. Oh accord about that, as a tech should not be construed strictly and it should not be concerned leniently, it should be construed reasonably to contain all that it fairly means.
Henry 12:48
Right? Right. And this is definitely a really tricky subject. Because, you know, how do you know what is too lenient and what is too strict?
Yuta 12:58
Yeah. Oh, We'll get to that. Sure. Yeah. All good selection.
Okay, another quote before.
He says a society that adopts a bill of rights is skeptical of that evolving standards of decency always Mark progress, and the societies always mature, as opposed to rot. Yeah, so he's just arguing against the the tendency to read.
I guess more into the law then.
is in the law. Yeah.
Henry 13:41
Right. So the two sides, the two tendencies are there to just to read the law very strictly and not allow for any sort of deviation in meaning, even if it's reasonable, and then the other side of being reading too much into law, so now it doesn't really have that. Have any reasonable attachment to what was written?
Yuta 14:03
Yeah. Okay. Should I talk about the tribe? Oh,
Henry 14:10
yeah.
Yuta 14:11
So I saw I read a response that Lawrence tribe, a really famous law professor at Harvard, wrote to Scalia.
Henry 14:21
Yeah, so the format of this book is that the first essay is Scalia's, you know, main thesis. And then there's a couple responses including this one.
Yuta 14:30
Yeah. And we're not gonna really talk about it much other than this one point. Yes. Go, I guess some goes to this point, we think. And so tribes argument is that he agrees that we should focus on the text of the law. But he's saying we don't know how to read the text because it sounds like the text gives you instructions on how to read it and how to read itself. And so Scalia says he should read the text as a reasonable person would interpret it. And tribe says, well, it's not really clear how you should read it. He can't say that because the constitution doesn't say
Henry 15:19
it doesn't say read this as if a reasonable person was interpreting it doesn't say that in the Constitution.
Yuta 15:25
Yeah, and then
Henry 15:29
Okay, so this is conclusion, all observations. Okay.
Yuta 15:38
So okay, the quote is from tribe. There's certainly nothing in the text itself that proclaims the Constitution's text to be the sole or ultimate point of reference. And even if it were, such a self referential proclamation would raise the problem of infinite regress.
Oh, no.
Yeah, yeah, I thought this was so funny.
Henry 16:08
Yeah, it just doesn't really make any sense. But I think that it gives a little context to who exactly Scalia is arguing against in terms of alternative approaches to interpreting the law. Yeah. And
Yuta 16:22
in a footnote here, he cites girdle.
Which we think I mean, we both really like that book.
Unknown Speaker 16:31
But
Yuta 16:32
I think it's a ridiculous book.
It's just totally irrelevant. I mean, we've read the book, and it's totally irrelevant. I mean, you can you don't even have to look at the citation. I mean, this quote, that, even if the constitution proclaimed how it should be read, even if that were the case, such as self referential pregnancy provocation, raise the problem of infinite regress. Yeah, that's crazy.
Henry 17:03
Cuz, like, talking about Yeah, me talking to you right now like I didn't tell you how to read what I'm saying. So it's an infinite regress if I told you how to read what I'm saying. Yeah,
Yuta 17:14
like if you asked me to pass you this bottle of water. It's like, I don't know what you meant by that since he didn't tell me how to interpret your words. Maybe, maybe by those words, you meant I should throw the water in your face. It's true.
Henry 17:31
That is a possible interview. Yeah, you
Yuta 17:33
didn't know. Or maybe it's just like, you didn't tell me to use English. So you were just like, shouting random. Sounds me?
Yep. The Constitution doesn't say that. You should read this as an English person.
Yeah, speaking person. Yeah. Okay, well, maybe we're not being totally fair, but I'm just Well, I think Has the argument that the constitution isn't clear about how it should be read. And so it's more open to interpretation. That is tribes argument. And that's a little fair. But and he did quote him directly and I think, I don't know it's, well, it sounds crazy, but I think I know this is just the only way I can think of to read the infinite regress thing. So,
Henry 18:27
yeah, it's pretty funny. It's good to bring it up. But in the context of Scalia's original argument, I think that he is addressing what Scully is trying to talk about, which is that there doesn't seem to be a definitive way to read the Constitution. You know, there are multiple interpretations that are considered legitimate, you know, so how do you resolve that? And and Scalia's point is that, well, we need to think about it in this way in terms of a reasonable person's approach. But tribes seems to be pointing out like, Well, why is that the right way to do it? You could just pick anyway. And it would be just as justified.
Yuta 19:08
Yeah, I guess I think he'd be. I mean, he would say he should read as a reasonable person. I agree. But it's just unclear what the reason person would read.
Henry 19:18
Okay. And now, I haven't read the rest of tribes.
Yuta 19:20
Yeah. Because I mean, nobody would argue he should read it reasonably, in a way. But he's, he's arguing against Scalia's interpretation of how a reasonable person would read it. But so
Henry 19:32
yeah, so that's another way to argue about schooling, which is that Scalia is gonna have certain decisions about what he thinks a reasonable person would say. But people can disagree on that. But I think that the first point to get is to agree that we should be judging us in terms of how a reasonable person would interpret it.
Yuta 19:53
And I think tribes definition definitely is more expansive, and it seems no more Yeah, I think liberals tend to be on that side of kind of expanding rights more than what you wouldn't kind of read into the actual texts of law. Um,
Henry 20:15
yeah, Scalia does make a point about this a little later. But yeah, we can get to that.
Yuta 20:19
So I'm glad I read this response to this reading Scalia. He's kind of arguing against people who, you know, we aren't really in this community of legal people. So he's kind of arguments people whose arguments we have that he's not directly citing usually. And but then you read tribe, and you kind of see what he means by a reasonable interpretation means that you don't read it in a way where he would come up with the problem of infinite regress.
Unknown Speaker 20:53
That is not a reasonable human interpretation. Well, Scalia didn't write
Henry 20:57
his original essay. How to interpreted. So that is fine way.
Yuta 21:06
Oh, yeah, he didn't write that. We shouldn't read his text the way a reasonable person.
Henry 21:13
Yeah. So he was just interpreting a different way. Yeah.
Yuta 21:17
It's like very clear. So yeah, if you're coming up with infringer as you're breeding it way too closely,
Henry 21:26
I guess. Well, it's kind of hard to say you'd have to ask. Yeah.
Yuta 21:33
But yeah,
maybe I'm like infinite regress maybe like you meant that in some way. Or it doesn't mean infinite regress like back then it could be reasonable, obviously, like, if he meant something, but then he cites girdle Escher, Bach, so we know exactly what he meant by infinite regress. We won't read the book. Yeah.
Henry 21:56
I mean, there is
Yeah, it just like, Oh, it's I mentioned the words infinite regress.
Unknown Speaker 22:04
So I'm gonna reference this book. This is a very cool topic that we both really like. But
Henry 22:13
yeah. I mean, I do see the literal way you could take it that leads to infinite regress, which is? Well, if I tell you how to interpret it, you have to already have presumed a certain way to interpret it to get that message from me telling you how to interpret it. Yeah. So there is a very literal way in which you could take that, yeah, that is not how any legal document or any document ever is written, or REL will use when you get to the part that the text refers to itself. You read it like a reason person would read it like, you know, right. I think that's what Scalia is trying to point out, at least on interpreting his entire point. And how I'm trying to condense it to this part is that he's not proposing an entirely new way to interpret legal documents or in particular the Constitution. He's trying to refine what people understand as the right way already to interpret these documents and formalizing that in terms of like, a reasonable person would interpret it this way. So if you disagree with me on what a reasonable person would interpret it, then we're still on the same page about how to judge it. But if you don't think it even has to do with what reasonable people think, then you're on a completely different way of interpreting documents in general.
Yuta 23:28
Yeah, I mean, I do think tribe would be okay with the description of the Constitution should be read as a reasonable person read it, but but just just be really expansive about you know, the reasonable person. And honest like, so I followed Lawrence travel and Twitter and Oh, right. He, I think he's kind of something's happened to him. So but I'm sure he was like very bright when he wrote This, though the one.
Yeah, it's just the one
Twitter thing I remember from him is that he shared an article about Ted Cruz being this being like a pathetic person sucking up to Trump. It was like a hit piece on Ted Cruz. And then Ted Cruz quoted the tweet, and he said, or he quoted someone else who, like had a article of the tweet or something. And then he wrote, I tried to message you, but you blocked me. You were a law professor at Harvard, and I respected you at the time. Like, there's like nothing more perfect than the fact that you blocked me and show like, how close minded you are.
Henry 24:50
Yeah, that's great when you have public and private to each.
Yuta 24:55
Yeah, totally irrelevant. side.
Henry 25:01
Yes. Now you know our
Yuta 25:04
introduction. Yeah, that's my character talk on. Yeah.
What if?
Yeah, let's hire him. Now I'm thinking of infinite regress in random places in
Henry 25:20
one way. Or did its, you know, tweet quote itself. You, when we first mentioned this topic, we seem to have slightly different interpretations of Scalia. I think that we we resolve that a little bit, but do you want to outline how you read Scully and what you disagree with?
Yuta 25:37
I think, um, yeah, I don't know. Yeah, I don't know if we solve the disagreement, but I think um, I heard you as saying that. Scalia kind of resolved how text should be read and that the debate is over, I guess, and I thought, kind of the debates are gonna happen. between people who think, who disagree on what how a reasonable person would read this specific law. And so I think it's, it doesn't totally, I basically I read the text as kind of giving a broad argument, but it doesn't totally resolve the specifics and kind of what makes it compelling. The fact that it's not ultra specific.
Henry 26:25
I agree with that. I think that we're on the same page. And I think that, you know, the common phrases, you know, reasonable people can disagree. Yeah. And while that might, this is more of a meta point, which is like, reasonable people can disagree on how to interpret things.
You think that
that's sort of the result. So if there was only one reasonable way? Okay, yeah, the debate would be over, but there does seem to be multiple reasonable ways to interpret legal documents.
Yuta 26:58
Yeah. I think The people he really disagrees strongly with are people who actually do have like a strong moral stance on the issue at hand. And then they'll say, Oh, this text wrote, maybe, for example, cruel and unusual punishment. He talks about this a little, and oh, cruel and unusual. That means now we know that that means capital punishment. Capital punishment is cruel and unusual as we found out. But then Scalia says, well, in texts in the Constitution, it actually mentions capital punishment. And it doesn't mention that capital punishment is cruel and unusual. So like, you can see that clearly they meant that capital punishment is not cruel, unusual. And so capital punishment is fine, or it's legal and and then he says there's a lot of people who argue that punishment should be is outlawed by the Constitution. Because it's quite unusual, and I think, yeah, he's saying like, he read the letter of law, using the meanings of the words and the meaning of law, as it would have been interpreted when the law was written, then the reasonable interpretation would be that capital punishment is not cruel and unusual. And
Henry 28:22
then when you say the interpretation, you mean the objective interpretation?
Yuta 28:28
He calls Yeah, the intent to say that criminal is not cruel, unusual. He calls that the object if I didn't turn right along. Yeah, that's a kind of a made up intent is usually people have intentions not text, but right. It's kind of kind of coming up with what a reasonable person would write if they wrote Yeah,
Henry 28:52
and it still leaves open the question of what thought I've justified a ton is obviously but yeah, yeah. I think that the the tricky part about punishment, I think it's pretty clear that they meant that capital punishment is not right, right. Yeah. And I think that what he is arguing and just to reinforce your point is that he wants to prevent these law judgers to become law givers. He doesn't want the judge to try to interpret into the law, what it should mean, what an intelligent person should have meant when they wrote this thing. Yeah.
Yuta 29:32
And I think he, the people he most disagrees with our people who, yeah, basically, they think crucial. They feel strongly that it means capital punishment, and because of that, they vote for that or vote for that in the supreme court as as their interpretation, but I think it's like it'll be very rare. What you'll find someone actually articulating that view that this is, I feel like capital punishment is bad, therefore I'm going to vote this way. But I think it's kind of implied that some people might, in their behavior act in that way, even if they don't articulate. But I think if someone actually defended that viewpoint that would be shut down pretty easily. But he's kind of implying that even people who maybe agree with them that the tech should be the tech should be read recently, might not behave as if they actually believe that.
Henry 30:35
Right? Maybe this summarize your point, it's that almost everyone would proclaim that the reason they think the law should be interpreted in this way is because that's a reasonable interpretation. But the facts might be that not everyone actually, is legitimately using that reasoning correctly. But when you argue that cruel for Like, I think that using this example is good. When you argue that cruel and unusual punishment applies to the capital punishment, then you're saying that a reasonable person would have judged capital punishment to be cruel and unusual. But even if you're giving that as your reason, and it is clear, that's not the case, because in other parts of the Constitution, it doesn't make that judgment. So you're reading into what cruel and unusual is based on what you think it should mean, in this context, rather than what you think it actually means.
Yuta 31:43
Or to them to the lawmakers. But yeah, I mean, I'm unclear some versions of the argument but or maybe better. Maybe you like if the constitution had written cruel and unusual punishment is punishment that is very painful. Basically, they have like, all these examples of things that are painful and outlawed, and then they say, capital punishment is painless. And then we find out 100 years later that it's actually way more painful than any of the things I mentioned, that are painful and therefore cruel and evil. Right now, maybe, maybe, you know, there's some American there. Maybe it's a version of that argument that people on that side want to make. Right. I disagree. I don't think Bill law says that kind of a punishment is cruel, unusual.
Henry 32:34
So there are certainly cases which it could go the other way. But I think that the point is that, regardless, you're still using the same standard that Scully is proposing in order to make that judgment. Whereas seems like the argument about cruel and unusual punishment is not abiding by that standard of judgment.
Yuta 32:54
Well, I think you'd be hard pressed to find someone who just explicitly disagrees with Scalia. Do you recognize the textualist approach? As he defines it? But
Henry 33:05
yeah, it's just yeah, this is the difficult part, which is that any disagreement about the matter of fact, can always be phrased in terms of a disagreement about what a reasonable person would think. As long as you're not admitting that your interpretation is not reasonable, and you just want to change the thing to be what you want it to be, then you can all as long as you don't want to explicitly admit that you can phrase your argument as well. I just think that a reasonable person thinks less. Yeah, you never are gonna get people that explicitly disagree with Scalia. But in disagreeing with him, say on certain judgments, you could still make the case that they're not being reasonable. That's fine. Yeah.
Yuta 33:50
Definitely in like society, maybe there's millions of people who if you ask, they would actually they would take like the caricature and tie it textualist position that is totally indefensible, which is like, oh, gay marriage is a good thing. So the Supreme Court should vote for gay marriage, or knockout punch, and it's bad. So the supreme court or abortion is good. So the Supreme Court should support it. But just to be very clear
Henry 34:18
here, I think we could easily get into bad territory, which is we're not saying that the Supreme Court shouldn't vote for, you know, gay marriage because gay marriage is good. We're just saying that that shouldn't be the reason that they decide the law is because it's moral. They should decide the law based on what the law actually is.
Yuta 34:40
Yeah.
Henry 34:42
Well, if the laws immoral, they shouldn't be the ones changing the law.
Yuta 34:48
Yeah, I mean, just as if you just as a judge, I would think it would be hard to fun you know, the idea that like the argument game, response, I should vote for gay marriage. But I think if you ask regular people like you would find plenty of examples. But yeah, on the Supreme Court or among lawyers, you probably wouldn't find people who would explicitly endorse that position.
Henry 35:18
I think this is a So the interesting part of this to me, in this section that we're talking about is that when you ask a common person, you know, I mean, we've already done this in that country, but you know, should gay marriage be legal? Right. When you ask them that, I think that you're asking them a sort of a counterfactual question, like a possibility question. It's like, you know, in if you were choosing between possible worlds, one where gay marriage is legal and one word isn't legal, then which one would you choose? And they would say, well, let's say you know, I choose the one where gay marriage is legal because I think gay marriage should be allowed. Because of my moral views, and I would agree with that. And then when you ask the Supreme Court Justice, should gay marriage be legal? Well, they're going to interpret that, I think as a different question, because it's not a matter of changing which world we're in. It's a matter of given the world we are. And does the law facts say that gay marriage is allowed or not?
Yuta 36:21
Right? Yeah.
Henry 36:22
And it might be that it's not allowed. And that is a bad decision. And that shouldn't be maintained in terms of legislature in terms of policy. But it's not up for the justice to decide whether or not to uphold the law based on that. I think that you actually have a good point about this, which is that if the just if the judges did decide to change laws based on what they thought should be the law, then that never offers an opportunity to the legislature to actually change bad laws and make good ones.
Yuta 36:57
Yeah, there would be no incentive to or no pressure To change the law, there's if it wouldn't make a practical difference. And also think just the infrastructure works in a way where, you know, people do their jobs, lawmakers make laws and the president, the executive branch enforces them. Legislative Branch interprets them. And it's just the function the system works well as it's designed. And it works less well, if people don't carry out their functions, even if, you know, in that specific instance, they would make things better. Like, you know, on a lot of these social issues, I think still overall in the long term, you know, hopefully, America has been around three engineers under this constitution. And hopefully, it'll be around for hundreds of years more and I think for the long term, it works best if we have a law govern society.
Henry 37:55
Oh, well, I mean, I don't know anyone who's or I don't think a lot of people are you gonna saw it.
Yuta 38:00
Well, I think that's what we're implying is the counter argument. A society governed by the what judges think the law should be instead of pylons.
Henry 38:11
Oh, okay. Okay. But I mean, I would, I guess that just law govern is a general term that I would think would apply to both. But I get what you mean. So one where the law is held up as a matter of precedent, whereas the other circumstance where it's just decided case by case based on what should
Yuta 38:30
be decided on precedent, either precedent is like what judges decided in the past, and that should play a role. But if the president goes against the letter of the law, then I think you should
write in a
Henry 38:43
letter of law. It should be according to the written law, not according to judges, decisions about what the law should be.
Yuta 38:51
Yeah, I mean, that can play a role and that's helpful, but like, you know, this Dred Scott decision was reversed. Yeah, decisions got reversed,
Henry 38:57
right. But but
Yuta 38:59
by the way, yeah, I think Dred Scott decision, Scalia says, cited the 10th. amendment or the amendment about I forget what it's called. Remember? No. It's an amendment that kind of give has been used often to expand the power of the government through interpreting the law. And Scalia says that was improper. So in many cases, he's kind of not on. He argues that trumping the constitution strictly would have led to more social progress in in the immediate sense. He's also right right voted for allowing for categorizing like flag burning and stuff like that as free speech, and I think he voted against some other people on the Supreme Court. So it's not, which you wouldn't expect to consider would have to do that. So it's like not, not super, you can't totally predict what side he would come on based on based off of Indian conservative conservative for whatever.