Strict Scrutiny Podcast Summary

Episode Title: DOGE Runs Amok & Originalism’s Ahistoricism
Release Date: February 10, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Guest: Jonathan Gnapp, Associate Professor of History and Law at Stanford
Podcast Description:
Strict Scrutiny delves into the complexities of the United States Supreme Court, exploring its cases, culture, and the legal landscape surrounding it. Hosted by constitutional law experts, the podcast offers accessible yet in-depth analysis tailored for legal professionals, students, and enthusiasts alike.

1. The Rise of the "Doge Bros" and Government Infiltration

[02:16] Introduction to Non-Newsy Segment
With the Supreme Court on hiatus, the hosts pivot to a pressing issue: the infiltration of federal government systems by a group colloquially known as the "Doge Bros." This segment sets the stage for an in-depth exploration of the security breaches and their implications.

[03:45 - 06:37] Understanding the Doge Bros
Leah Litman introduces the concept of the "Doge Bros," describing them as an unelected group, primarily young men aged 19 to 24, who have managed to secure administrative access to critical federal systems, including the Treasury Department's payment infrastructure. Melissa Murray emphasizes the severity, stating, "These are the payment systems where you feed all of your personal information, your address, your Social Security number, and we have no idea who these Doge Bros are?" ([05:11]).

[07:13 - 09:02] Profiles and Motivations
Kate Shaw references a Wired profile revealing that these individuals have ties to figures like Peter Thiel and have backgrounds in AI and tech startups. The group is characterized as having connections to the "manosphere," blending libertarian ideologies with extreme viewpoints. Melissa Murray adds, "They are arguing to slash government spending... it's in violation of all of the spending clause jurisprudence." ([09:16]).

[11:48 - 15:47] Legal and Security Implications
Jonathan Gnapp outlines the extent of the breach, highlighting that the Doge Bros possess administrator-level privileges that enable them to modify or delete federal records, posing a monumental security risk. Kate Shaw underscores the danger: "Huge security risk, whether we're talking about the kind of mainframe for federal spending or the nation's air traffic control system." ([09:56]).

[17:34 - 24:52] Human Costs and Government Response
The discussion shifts to the tragic consequences of these breaches, including the fatal collision involving Sarah Best, a young civil rights attorney. Melissa Murray poignantly reflects on the human impact, remarking, "It's terrifying... it's wildly illegal." ([08:15]).

[28:08 - 30:20] Legal Battles and Public Outrage
The hosts discuss ongoing lawsuits aiming to restrict Doge Bros' access to various federal departments. Leah Litman stresses the importance of these legal efforts in generating public outrage and slowing down malicious activities. Kate Shaw suggests actionable steps for listeners, such as contacting their representatives to support these initiatives. Melissa Murray echoes the urgency, highlighting the potential national security disaster looming due to these unauthorized accesses.

2. Originalism’s Ahistoricism: A Critical Examination

[34:33 - 36:36] Transition to Book Discussion
After addressing the security crises, the podcast transitions to a scholarly discussion on constitutional interpretation, focusing on Jonathan Gnapp’s book, Against Constitutional Originalism. The hosts introduce the concept of originalism and set the stage for an in-depth critique.

[36:36 - 43:23] Defining Originalism and Its Variants
Jonathan Gnapp begins by defining originalism as a method of constitutional interpretation that seeks to understand the Constitution based on its original meaning or intent at the time it was enacted. Melissa Murray elaborates, "Originalism is an answer to the question how should we interpret the Constitution today?... it elevates history and original meaning above every other input." ([37:08]).

[43:11 - 51:36] The Evolution and Challenges of Originalism
The conversation delves into the proliferation of originalism’s variants, such as original intent, original public meaning, and original law. Melissa Murray critiques how originalism has continually reinvented itself to address internal contradictions, stating, "Every year it has a New Year's resolution, or it's giving itself like a makeover." ([38:48]).

[51:36 - 56:00] Originalism vs. Historical Scholarship
Jonathan Gnapp emphasizes the disconnect between originalism and historical scholarship. He argues that originalists often fail to immerse themselves in the historical context of the Founding Era, leading to misinterpretations. Melissa Murray concurs, noting that originalism attempts to draw straight lines from the past to the present without acknowledging the complexities and changes in constitutional understanding over time.

[56:00 - 66:39] Conceptual Drift vs. Linguistic Drift
Leah Litman introduces the distinction between linguistic drift (changes in word meanings over time) and conceptual drift (changes in fundamental concepts). Melissa Murray uses the example of "liberty" to illustrate this difference. She explains that 18th-century Americans conceptualized liberty as "non-domination" rather than mere non-interference, fundamentally differing from modern interpretations. "They saw them as an extension of my will and my consent, or is it a will alien to me." ([66:39]).

[66:39 - 73:58] Case Study: Second Amendment and Bruen v. Adolf Lauderdale
The discussion highlights the Supreme Court’s decision in Bruen v. Bruin as a prime example of originalism’s ahistoricism. Melissa Murray critiques how the Court applies originalism by searching for historical analogs to modern gun control measures, ignoring the evolving conceptual understanding of liberty and the role of representative government in defining constitutional rights. "This was exactly how the Second Amendment should be worked out in practice." ([70:23]).

[73:58 - 81:20] Original Law Originalism and Its Deviations
Jonathan Gnapp introduces the concept of "original law originalism," a newer variant that diverges further from traditional originalism by treating the Constitution as a dynamic system of law rather than a static text. Melissa Murray points out that this variant still relies on historical interpretations without adequately addressing the foundational differences in constitutional understanding between the past and present. "There are a great many examples to choose from, but one that comes recently to mind is presidential power..." ([75:38]).

[81:20 - 85:45] Integrating Historical Context into Constitutional Interpretation
The hosts and Gnapp discuss the necessity of understanding the historical context and the nature of the federal union to interpret the Constitution responsibly. Melissa Murray emphasizes that originalists overlook the Founders' intentions regarding the evolving nature of laws and the importance of democratic processes in interpreting constitutional rights. "Originalism has long tried to eliminate the discretion which is essential to democratic life." ([85:21]).

3. Conclusion and Call to Action

[85:45 - 86:48] Final Remarks and Recommendations
Leah Litman wraps up the discussion by endorsing Jonathan Gnapp’s book, Against Constitutional Originalism, praising its comprehensive critique and accessibility. The hosts encourage listeners to engage with the material to better understand the limitations and challenges of originalism in modern constitutional interpretation.

[86:48 Onwards] Advertisements and Outro
The podcast concludes with sponsored advertisements and promotional content, which are excluded from the summary as per the guidelines.

Notable Quotes

• Melissa Murray ([05:11]):
  "These are the payment systems where you feed all of your personal information, your address, your Social Security number, and we have no idea who these Doge Bros are?"

• Kate Shaw ([09:56]):
  "Huge security risk, whether we're talking about the kind of mainframe for federal spending or the nation's air traffic control system."

• Melissa Murray ([37:08]):
  "Originalism is an answer to the question how should we interpret the Constitution today?... it elevates history and original meaning above every other input."

• Melissa Murray ([51:36]):
  "Originalism doesn't just look at history, it elevates original meaning or original intent above every other input."

• Melissa Murray ([66:39]):
  "They saw [liberty] as non-domination rather than mere non-interference, fundamentally differing from modern interpretations."

• Melissa Murray ([70:23]):
  "The Supreme Court’s notion there was you can't have the energetic executive if they're too accountable. That's exactly how you constituted power in a Republican space."

Key Takeaways

1. Security Breaches by "Doge Bros":

   • A group of young, unelected individuals with ties to libertarian ideologies have infiltrated critical federal systems, posing significant security and legal risks.
   • Legal actions are underway to restrict their access, but the situation underscores vulnerabilities in federal infrastructure.

2. Critique of Originalism:

   • Jonathan Gnapp’s Against Constitutional Originalism offers a deep historical critique, arguing that originalism fails to account for the evolving conceptual frameworks of constitutional principles.
   • The distinction between linguistic drift and conceptual drift is crucial in understanding how constitutional interpretations have changed over time.
   • Case studies like Bruen v. Bruin illustrate how originalism can lead to ahistorical and potentially harmful judicial decisions.

3. Importance of Historical Context:

   • Effective constitutional interpretation requires a nuanced understanding of the historical and political contexts in which the Constitution was framed.
   • The founding generation’s views on concepts like liberty and executive power differ significantly from modern interpretations, challenging the applicability of originalism.

4. Call to Action:

   • Listeners are encouraged to engage with scholarly works, such as Gnapp’s book, to foster a more informed and critical approach to constitutional interpretation.
   • Active participation in legal and political processes is essential to counteract unchecked originalist interpretations that may undermine democratic principles.

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