November 26, 2024 • 45 mins
The 2024 National Lawyers Convention will take place November 14-16, 2024 at the Washington Hilton in Washington, DC. The topic of the conference is "Group Identity and the Law." The conference will conclude with the annual Hon. Robert H. Bork Memorial Lecture, featuring remarks by Prof. Stephen Sachs.
Featuring:
Prof. Stephen Sachs, Antonin Scalia Professor of Law, Harvard Law School
Featuring:
Prof. Stephen Sachs, Antonin Scalia Professor of Law, Harvard Law School
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:06):
If everyone could find a seed, please find a seat,
(01:42):
if you could, please, If everyone could take a seat, please,
we're gonna get started. There's plenty of seats here in
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the front if people want to make their way to
the front. It's an excited crowd. Welcome everyone. Slowly the
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crowd quiets. Thank you, Michael. My name is still Dean Reuter.
I am almost tired of saying that, but welcome to
the Robert H. Bork Memorial Lecture. I want to begin,
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if I could, with a show of hands, So a
quick show of hands. How many of you are settisfied
being here at the Washington Hilton Hotel? Okay, how many
of you are grudgingly satisfied being here at the Washington Hook. Wow,
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that's some valuable information. But I was able to see
hands on the first question. No cat calling. This is
this is a show of hands. Do you understand? Show
of hands? All right, Well, that's good information for us.
Now here's some information for you. The next National Lawyer's
Convention has already been scheduled. It is November sixth through
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the eighth, So mark your calendar is November sixth through
the eighth. Somebody said that's early and I'm well aware
of that because we have one less week to plan it.
It will be here at the Washington Hilton Hotel. This
is a tough crowd, you know.
Speaker 2 (03:58):
This is.
Speaker 1 (04:00):
Now let me begin to introduce this lecture if I
we're excited to be hosting, of course, the annual Robert H.
Borg Memorial Lecture, and now turning to Robert Borke's legacy
for a moment, if you'll indulge me, I know everyone
in this room, as a lawyer, knows that it would
be a great thing for you professionally if during your
lifetime as an attorney or legal scholar, you could revolutionize
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not only how the legal and policy world think about
anti trust but how they do antitrust. That would be
just an enormous impact in a significant area of law
that I couldn't even fathom if I had a role
in that, the role in that, But likewise, it would
be a remarkable thing to become known as the pre
eminent scholar, the pre eminent thinker and administrative law such
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an important area of law that seems to become increasingly
important with implications for separation of powers and limited or
unlimited government. But to do both, to have huge impacts
in trust and ad law. That would be truly astounding.
But certainly, of course, it would be impressive if during
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your lifetime you raised and then firmly planted the banners
of originalism and textualism and the legal landscape, if you
revolutionize the way lawyers think about the written word. But
to do all three things, revolutionizing antitrust, administrative law, and
originalism and textualism, all three that's almost otherworldly. I would
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say it's impossible, But we all know Judge Bork did
do these three things and much much more. In addition,
he was a friend of the Federalist Society, and his
memory and legacy will endure within the DNA of this
organization for as long as this organization exists. So we
are very pleased and honored to carry on the tradition
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each year to recognize his contributions to us and to
the country. And now would to recognize members of the
Bork family who are able to join us today. Bob Bork,
his son, his wife Diana, and their daughter Claire, thank
you for being here. We're honored to welcome our speaker
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for today's lecture, Professor Stephen R. Sachs, Professor stax Aptly
is the Antonin Scalia Professor of Law at Harvard Law School,
where he teaches civil procedure, conflict of laws, and seminars
on constitutional law. His research focuses on the theory of
constitutional interpretation, the jurisdiction of state and federal courts, the
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history of procedure in private law, and the role of
the general common law in the US legal system. He's
authored numerous articles, essays, and book chapters. He's also an
elected member of the American Law Institute, an advisor to
Alised Project the Restatement of Law Conflict of Laws, a
member of the Judicial Conference's Advisory Committee on Appellate Rules,
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and a founding member of the Academic Freedom Aligance. Professor Sachs,
We're so pleased to welcome you here today.
Speaker 2 (07:26):
Thank you very much for that kind introduction. I am
honored by your confidence in being invited to speak here today.
I am honored by all of you taking time out
of your afternoon to come hear me. I apologize that
I have no champagne to offer, and I'm honored by
the decision of some of the students at my law school,
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some of whom are here today to choose me as
their advisor, and I'm honored to give this lecture named
for Judge Bork, whose work served as part of the
foundation of modern originalism. This conference has discussed the theme
of group identity and law, and I would like to
speak today on two not entirely unrelated issues of group
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identity and the constitution.
Speaker 3 (08:09):
As inspired by some of George Bourg's work.
Speaker 2 (08:13):
Much of politics is identity politics, and it has been
for a very long time.
Speaker 3 (08:17):
There was never a point in our history.
Speaker 2 (08:19):
When questions of identity didn't matter for American politics or
American law. And that is true not only of familiar
categories of identity such as race or sex, but also
of ones that have declined somewhat in influence over time,
such as region or religion, and new categories of education
and credentials. So I'd like to speak today about two
very different problems, some posed by the past and some
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posed by the present. First about the problems posed for
our constitutional tradition by those divisions most salient at the founding,
And second about the problems posed for our constitutional tradition,
but also for good governance more generally, of some divisions
becoming newly salient today. In both cases, the Constitution isn't
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a full answer to social divisions, whether at the founding
or today, and indeed it doesn't try to be. Rather,
it's an attempt at a modus vivendi, a way that
deeply divided people might seek to live together. The divisions
that we face now are new in every era, and
the difficulties that they pose for constitutionalism or novel two.
But the Constitution has some role to play in how
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we respond to them, and organizations like the Federal Society
have some role to play too. We can frame the
first problem by discussing then Professor Borke's famous nineteen seventy
one article on Neutral Principles and some First Amendment Problems,
one of the seminal works of modern originalism. In that article,
Borke considered the view that courts generally and the Supreme
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Court in particular, needed to make choices of fundamental values.
Borke argued against this view is inappropriate for a democratic
society where the Constitution does not embody the moral or
ethical choice. He wrote, the judge has no basis other
than its own values on which to set aside the
community judgment embodied in the statute that by definition is
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an inadequate basis for judicial supremacy. Now, it's possible to
read this passage as morally relativist, and of course Bork
was not.
Speaker 3 (10:13):
For this purpose.
Speaker 2 (10:14):
He didn't have to deny that questions of value can
have better or worse answers, or that judges, like other people,
can sometimes tell which is which. Instead, he needed only
to recognize that people regularly disagree on which answers are
better than or worse, and to invoke what he called
the presuppositions of a democratic society, in which the people
by and large.
Speaker 3 (10:34):
Get to decide which answers they trust.
Speaker 2 (10:37):
In that kind of society, the officials, including the judges,
have only as much authority as.
Speaker 3 (10:42):
The people have given them. If the people never gave.
Speaker 2 (10:45):
Their authority their judges authority to make certain moral and
political decisions, then the judges can't make them, no matter
how good their moral and political judgment might be. Their
response to the supreme courts making moral and political choices,
then might be who do you think you are? Not
just in the rhetorical sense, but literally, who do you
think you are? What is this supreme court of which
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you speak? When we need to settle questions about the
Article three Court's own composition and membership and structure. We
look to the Constitution and to the laws made in
pursuance thereof just as we do to find out these
court's powers or the substantive rules they're supposed to apply.
The theories of judicial supremacy that Bork saw around him
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are theories of a very strange world in which Article
three is in the Constitution but nothing else is. Instead,
as Bork pointed out, rather than claim authority to make
moral and political choices on their own, our courts themselves
regularly acknowledge the authority of the founding Instead, as he wrote,
the Supreme Court regularly insists that its results, and most
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particularly its controversial results, do not spring from the mere
will of the justices in the majority, but are supported,
indeed compelled by a proper understanding of the Constitution of
the United States. Value choices are attributed to the founding Fathers,
not to the Court. The way an institution advertises tells
you what it thinks its customers demand. Now, for myself,
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I would use slightly different language. To my mind, the
founders chose not values, but rules of law. The Commerce
Clause does not say regulating commerce is very important. Instead
describes a specific power and commits it to a specific body.
But the intuition is the same. In our system. We
take the Constitution's enactment as having made certain decisions, and
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we take those decisions as revisable only via certain means.
And these expectations are made themselves more visible by just
how loudly the Court keeps proclaiming them whenever it's doing
something fishy. The Supreme Court does not claim an institutionalized
role as tribune of the people, let alone, as Bork
put it, as perpetrator of limited coudeta. Instead, it only
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claims the role of enforcing decisions already made, including the
past decisions that give it something to decide. But this
brings us to the first problem that I mentioned above.
Those decisions are those value choices made by the Founders
have only as much authority as we give them today,
and that authority.
Speaker 3 (13:12):
Is perhaps on the wane.
Speaker 2 (13:15):
A few years ago, a colleague asked me, with real concern,
though he was not an originalist himself, how is originalism
supposed to survive given that we no longer think of
the founders with respect. Similarly, at an event in twenty
twenty one, n hy U law professor Kenji Yoshino reportedly
asked Justice Sodomyor whether originalism would become increasingly untenable as
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the country's demographic makeup continues to depart substantially from the
makeup of the Framers. Justice Soda Mayor, it was reported,
thought it a fascinating question whether and how her colleagues's
use of originalism will lead to dissonance between what we
are deciding and what the general population accepts as to
what the law should be. Indeed, a criticism of this
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kind appeared in the joint dissent in Dabbs. Justices Bryer, Soda, Mayor,
and Kagan pointedly noted that quote the people did not
ratify the fourteenth Amendment.
Speaker 3 (14:07):
Men did.
Speaker 2 (14:08):
Those responsible for the original constitution they wrote, including the
fourteenth Amendment, did not perceive women as equals and did
not recognize women's rights. When the majority says that we
must read our foundational charters viewed at the time of ratification,
it concluded, it consigns women to second class citizenship. So
this is the first problem posed for our constitutional tradition
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that I'd like to discuss. If Americans no longer see
themselves in the Founders as they once did? What does
that mean for our use of the Founder's Law? Why
should the two hundred year old decisions of a bunch
of white male property owners, indeed many of them slave owners,
have binding force for us today. If the idea of
virginalism is restoring some past world or past consensus, then
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why should those who were excluded from that past consensus,
from whom, or for whom I'm sorry, As Columbia professor
Jamal Green has written, a narrative of restoration may be
deeply alienating, why should they be expected to play along?
I don't mean in any way to understate the force
of this critique, which I see is quite serious. What
I do want to emphasize is the way in which
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it's really more about the present than the past. The
claim that we can't see ourselves in the Founders has
more to do with modern identity than past exclusion, with
who is on the outs now and not necessarily who
was rendered voiceless. Then consider the way that it's sometimes
framed that had I lived back then, I wouldn't have
been able to vote. Let's spell out that counterfactual. Who
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is the I who would have lived back then. For example,
while the US Constitution banned religious tests for federal office,
in many places, Jews could not hold certain state offices,
and in some playss Catholics couldn't either. The seventeen seventy
six North Carolina Constitution, for example, provided that no person
who shall deny the being of God or the truth
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of the Protestant religion shall be capable of holding any
office or place of trust or profit in the Civil
Department within this state. I lived in North Carolina for
a decade. I now live in the Commonwealth of Massachusetts,
and in one sense, had I lived back then, being Jewish,
I could not have been a member of the Massachusetts
legislature that voted on ratifying the free Exercise Clause. In
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that sense, the people didn't ratify the First Amendment either,
Protestants did. But we still think that the First Amendment
has forced for us today and not just for Protestants now.
I am not trying to argue by any means that Jews, Catholics,
and African Americans were all equally oppressed of the Founding.
Speaker 3 (16:35):
I think that would be absurd.
Speaker 2 (16:36):
What I am trying to argue is that The reason
we today see some of these exclusions as less meaningful
and other exclusions as more deeply painful is not just
because of the depth of those exclusions in the past.
It's also because of our beliefs about those exclusions today.
In modern American society, Jews and Catholics have not usually
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been on the outs. Today's societ is not nearly so
stratified along religious lines as it used to be, so
many people don't think of these past religious exclusions as
deep features of the Founding that require drastic modern remedies.
So too, one would think, for the injustices worked by
the Chinese exclusion acts. But other social distinctions of race
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and sex may be very much still with us, and
so many people see these divisions as dividing us from
the Founding generation. That doesn't make these divisions less real,
but it does show that our task is to lessen
the divisions today rather than to attempt to go about
fixing the past. That these concerns are about the present
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and not the past also explains why we don't worry
very much about playing the counterfactual forward arguments about voting
restrictions that the Founding generally aren't designed to promote a
specific package of legal rules that would have resulted had
our past society been more just. For example, and as
I argue in a forthcoming article to its founding era
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clinic critics, my colleague Michael Klarman argues, the Constitution was
seen as a white male elite project, a scheme to
favor the mercantile interest. Some backcountry farmers thought. In that case,
more universal suffrage on grounds of property ownership as well
as racers sex might well have led to no Constitution
at all, or else to something closer to the Articles
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of Confederation, with many fewer powers for Congress and many
fewer limits on the states. Remember, in an era of
fugitive slave acts, plantation owners might often have taken a
broader view of inherent national authority than those whom they enslaved.
Political parties and interest groups flip flop on federalism every day,
so there's no reason to suspect that ordinary Americans would,
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by virtue of their race, have held any consistent views
on federalism across the centuries. If we want to resolve
these divisions, one might then conclude we should focus on
the actual concerns of actual people today. Instead of symbolically
incorporating the hypothetical opinions of other peopleeople who kind of resembled.
Speaker 3 (19:01):
Them two hundred years ago.
Speaker 2 (19:04):
In some ways, this problem is very familiar, As Green notes,
any constitutional theory needs to think about the dead hand problem.
Why the decisions of people more than two hundred years ago,
all of whom are now long dead, are binding on
their own descendants, and any theory adequate to deal with
that problem will usually be adequate to explain why those
decisions might have authority for the descendants of others. At
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the founding, roughly half of my children's ancestors were somewhere
in Eastern Europe we don't know where. Another portion were
in Western Europe, some were in the American South, and
some were held in slavery, either in Puerto Rico or
what's now the Dominican Republic. Almost none of them, even
the men, were consulted in forming the constitution, but almost
none of them would have shared my children's views and
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interests either. What really seems to matter in deciding whether
people at the Founding were or were not like me
is not whether they shared my social characteristics, but whether
they share my views on questions of importance. But as
Chris Green notes, what would the framers do if they
agreed with us about everything? Is just another way of
asking what would we do? And we do not need
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a constitution to tell us that. Instead, when my ancestors
came to the United States, they chose to join its
society and accept its citizenship on its own terms. Likewise,
the extension of the right to vote on the basis
of race in eighteen seventy, of sex in nineteen twenty,
to Native Americans in nineteen twenty four, and so on
did not erase all past injustices, but the acceptance and
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use of that right did represent a claim to membership
in an existing polity with existing law, rather than an
effort to replace that polity with something new. Law is
always backwards looking in that way, As my old boss,
the late Judge Williams once pointed out, at least until
we devise time machines, a change in law can only
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have its effects in the future. Enacting a law does
nothing nothing at all unless it is applied by people
in the future who will treat it as part of
their legal past, treating past law as staying law until
it's lawfully changed, gives current lawmakers a very important power,
namely the power to leave things alone, and it lets
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us impose conditions on when we do change the law,
reassuring those who lose an election or two by requiring
a very broad and formal consensus for fundamental change, say
two thirds of each House and three quarters of the states.
We can see this most clearly in imagining how our
system might work if it didn't require that kind of
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reliance on the past. As Georgetown professor Lewis Michael Sideman
has put it, instead of arguing about what is to
be done, we argue about what James Madison might have
wanted done two hundred and twenty five years ago. To Sidemen,
we should instead rely on a network of customs, rules, precedents,
and legislative texts, which can be disregarded when advocates persuade
people that they are unjust, ineffective, or outdated. Or consider
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the argument Yale professor Samuel Moyne and my colleague griandorfler
that we should adopt a system of legislative supremacy, doing
politics through ordinary statute rather than fighting over who controls
the heavy weaponry of constitutional law from the past if
legislatures just passed rules and protected values majorities believe in,
they argue, the distinction between higher law and everyday politics
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effectively disappears, and we could have the present electorate decide
on fundamental values like racial equality or environmental justice. The
difficulty here, as others have pointed out, is that even
legislative supremacy requires some higher law. In order to know
know really who is this Congress of which you speak,
we need some rules governing Congress's composition and membership, rules
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that we currently take from the Constitution, just like all
of the rules, but specifying which powers belong to this
Congress and which belong to other bodies. A world of
legislative supremacy is, like a said above, a very strange
world in which Article one is part of the Constitution
but nothing else is. And this problem shows up in
spades when we imagine with sidemen relying instead on a
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loose network of customs and precedents, a sort of British
unwritten constitution for the United States. The British have parliamentary
sovereignty to make that system work, but we don't. A
world with no written constitution but with conflicting centers of
power in the States, the White House, Congress, and the
Court is very hard to get right. What, for example,
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prevents the current president elect from running for a third
term in twenty twenty eight, other than an antiquated constitutional text, or,
as Sideman might put it, what Earl Mitchener and Robert
Taft wanted done seventy seven years ago. The point here
isn't that originalism is the only way of running a
legal system. The point is that the dead hand problem
is a problem regardless of what legal system you use.
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Because the people cannot always be assembled. There must be
some way that the legal system acts, and also some
way whenever it isn't acting, that we identify the law
that was made the last time it acted, even in
the benighted past. And as it happens, other than originalism,
there is no way that we here happen to recognize
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of fully acknowledging a change in our fundamental law. There
are plenty of rules that one might call black letter
law today that are not in the original Constitution, growing
wheat in your backyard, as Interstate Commerce say, but you
know here that's a laugh line, but no black letter
rule about how those rules get to be black letter
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law other than Article five, and even the court that.
Speaker 3 (24:39):
Decided wickerd v.
Speaker 2 (24:40):
Filburn had to claim that its decision followed naturally from
the Constitution, indeed that it was quote a return to
the principles first enunciated by Chief Justice Marshal in Gibbons Viagden,
a mere application of the Constitution's timeless principles to present facts.
And that is why the Dobbs dissenter's response was not
to get rid of the male ratified fourteenth Amendment, even
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though its ratification was in fact opposed by early feminists,
because its section two protected suffrage from male citizens only
was the first use of the word male in the Constitution.
Neither did the dissenters read the amendment counterfactually to imagine
what it would have said in a world where women
had participated fully, but the Amendment passed nonetheless. Instead, the
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dissenter's response was to apply the Amendment by what they
claimed to be its original terms, by happy coincidence, They argued,
the male framers of the fourteenth Amendment had not defined
rights by reference to the specific practices existing at the time,
but rather in general terms to permit future evolution.
Speaker 3 (25:45):
If that were true, then The question for us today
would be the correct application of those.
Speaker 2 (25:50):
General terms to present facts. But of course, whether it
is true, or whether the Fourteenth Amendment codified past rights
rather than evolving new ones, is a question that can
only be settled as a matter of original history by
correctly understanding which rule its actual framers and ratifiers wrote down. Now,
the legal validity of these rules is one question. Their
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binding authority in our consciences another. But we who value
the society in which we live, and who intend to
treat those who live here with us as our fellow citizens,
notwithstanding our divisions, may have good reason often to treat
what's law as law, what is widely acknowledged as law,
including what is widely acknowledged as.
Speaker 3 (26:29):
The exclusive means of legal change.
Speaker 2 (26:32):
And that is true even if our law today is
not what we would like it to be, or is
made long ago in a way that it should not
have been made. Remember, for all of the limits on
the franchise that attended its adoption, the Constitution itself was
not made by a homogeneous group of rich white men
who already agreed on everything. It was made by an
extremely heterogeneous group who disagreed hotly on all sorts of things,
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including on the evils of human slavery. And the reason
that it has worked as a modus vivendi for so
many years, to the extent that it has, was that
it was mostly able to channel disagreements like these in
productive ways, encouraging people who wanted fundamental change to convince
broad swaths of their fellow citizens, rather than just to
win the next election by a margin of fifty percent
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plus one. In a polarized era, though, the idea of
persuading broad swaths and one's fellow citizens to do anything
important may seem impossible. And so this brings us to
the second problem, not just of divisions that have been
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salient for centuries, but divisions becoming newly salient today. Returned
to Judge Bork and his paper on Neutral Principles. Bork
had looked around him in nineteen seventy one and seen
a judiciary unable or unwilling to defend its claims on
solid intellectual grounds. Cases like griswoldby Connecticut, whatever one thinks
of they're outcome, were failures simply as a matter of
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legal craft. As he described it, Griswald was an unprincipled
decision both in the way in which it derives a
new constitutional right and in the way it defines that right,
or rather fails to define it. The Court soon followed
up Griswold with Baird the Eisenstadt, in which it announced
that if the right to marital privacy that was announced
in Griswald means anything, it applies equally to quote the individual,
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married or single. As was noted by my former colleague
Jeff Powell, this is a claim that cannot be made
quote with a straight face and expecting to be taken seriously.
The difference between reasoned judgment and authoritarian dictat has become obscure.
The growth of modern originalism, Powell argued, was a quote
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response to a situation in which the Constitution's most important
interpreters not just a few crackpots here and there, but
a majority of justices.
Speaker 3 (28:56):
Of the Supreme Court of the United States.
Speaker 2 (28:58):
Quote could present the logic of the Eisenstadt opinion as
though it were a respectable legal argument, rather than a
non sequitur that revealed a sort of contempt for the
notion of reason and decision and for the litigants, lawyers,
and general public for whom the opinion was supposed to
explain the court's decision.
Speaker 3 (29:18):
This brings us to a second piece of.
Speaker 2 (29:19):
Writing by Judge Bork, his nineteen ninety six essay on
the End of Democracy In first Things, this essay was
published twenty five years after Neutral Principles, a quarter century
in which many new justices had been appointed, but in
which the Supreme Court had, in Borg's view, only strayed
further from the original Constitution, doubling down on the errors
of the Warren and Burger Courts. And so he concluded
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this tendency of courts was the inevitable result of our
written constitution and the power of judicial review power corrupts.
An unchecked judicial power inevitably lead to unchecked abuse. To
halt the transformation of our society and culture by judges,
he suggested a constitutional amendment to ban judicial or alternatively
to allow Congress to override the courts, or, in the
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last need, it may be that elected officials should simply
refuse to comply with their decisions. In other words, this
anticipated the various positions of professors Moines, d'orfler and Sideman
many years later, proposing populist majoritarian solutions to the defects
of a credential judicial elite. Yet solutions that, as were acknowledged,
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carried serious costs and dangers of their own. Looking back
on this essay twenty five one years later, one sees
immediately that the arrow of history does not always point
in the same direction. Roe has been overruled. The courts
are plainly more originalists than they used to be. Attitudes
towards acceptable forms of judging have been transformed. At no
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time in recent history has the federalist Society's position that is,
the province and duty of the judiciary to say what
the law is and not what it should be, been
more widely echoed and accepted. But in other ways the
situation is far more grave. The sorts of institutional failures
that Bork saw in the courts and to which he
proposed legislative overrides some populist and majoritarian solution, have been
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revealed in a wide range of institutions. These institutions are
often run by folks with impeccable credentials, by which I
mean the socially recognized indicators of unusual skill, knowledge, or experience,
and yet for all their elite credentials in many fields,
they've done a pretty lousy job. We have a public
health establishment that's lost public confidence and vitally important matters,
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having exaggerated some dangers and underemphasized others.
Speaker 3 (31:36):
We have educational institutions.
Speaker 2 (31:38):
That have sought ever more funding but have failed to
maintain effective literacy levels over time. We have a national
press that too often fails to inform or indeed often
leaves one knowing less, and so on and on and on.
I am sure that everyone in the audience here could
recite his or her own litany of institutional failures. In
too many areas, the credentialed the adults in the room
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have not acted wisely or well. And yet, in failing
to act wisely or well, they have acted in predictable, politicized,
and culturally insular ways. Again, I do not need to
remind you of the examples. The concern here is not
merely that our credentialed class is performing less well, but
that this is both cause and symptom of a growing
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social and political division between those who are members of
this credentialed class and those who are not. And this
new source of division poses a second problem both for
society and for constitutionalism. And I would like to discuss both,
let's start with society. Per recent polls, fewer people say
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that it would matter to them if a family member
married someone of another race than if that family member
married someone who voted for the other party. Now, this
is based on what people will admit to upholster, and
it does not suggest by any means that party identification
is more salient to Americans today than race. While greater
interracial understanding is extraordinarily welcome, this cultural division along party
(33:05):
lines does represent something new and in my view, very worrisome.
As we have seen in the last election, our politics
are becoming somewhat less polarized by our existing divisions of
race and ethnicity, and somewhat more polarized by gender and
especially by class. Not income necessarily, but by education and
by a certain kind of social position. The sorts of
(33:27):
people like me who have college or indeed postgraduate degrees,
people who work in culturally influential institutions like universities.
Speaker 3 (33:35):
People who live in zip codes where a whole foods.
Speaker 2 (33:37):
Is to be found. These folks have, to some extent
come apart socially and politically from those who do not,
and the more politically insular the institutions staffed by such
people are the easier it is for politics to affect
their judgment, since, after all, everyone around you and everyone
you know thinks pretty much the same thing. So trusting
(33:59):
these institutions leads one in.
Speaker 3 (34:02):
A more polarized and insular.
Speaker 2 (34:03):
Direction, because it leads to distrust of all those who
would contradict them.
Speaker 3 (34:07):
And the same is.
Speaker 2 (34:08):
True on the other side, because distrusting those institutions, which
is often the mark of a crank, encourages one to
seek out fellow cranks who will helpfully affirm one's own views.
This cycle of political polarization makes effective government correction not
any correction at all, but effective correction that much more difficult.
(34:28):
In the words of essayist Scott Alexander, from whom the
next few paragraphs are, elites have enough advantages in power, connections, education,
and so on, that in the natural course of events,
they always come out on top. Trying to come up
with a system where elites don't come out on top
is an almost feutile task, one where you will be
constantly pumping against entropy. The normal course of politics is
(34:50):
various coalitions of elites and populace, each drawing from their
own power bases. A normal political party, like a normal
anything else, has elite leaders, analysts, propagandists, and managers, plus
populous foot soldiers. Then there's an election, and sometimes your
elites get in. Sometimes their elites get in. But getting
a political party that's against the elites is really hard
(35:10):
and usually the sort of thing that gets claimed rather
than accomplished, because elites rise to the top of everything.
But sometimes political parties can run on an explicitly anti
elite platform. In theory, this sounds good, nobody wants to
be elitist. In practice this often gets really nasty quickly.
Democracy is a pure numbers game, so it's hard for
the elites to control. The populace can genuinely seize the
(35:32):
reigns of democracy if it really wants, But if that happens,
the government will be arrayed against every other institution in
the nation.
Speaker 3 (35:38):
Elites rise to the.
Speaker 2 (35:39):
Top of everything, media, academia, culture, so all of those
institutions will hate the new government and be hated by
it in turn.
Speaker 3 (35:46):
Close quote.
Speaker 2 (35:49):
Now, fixing that division, that separation of the credentialed class
from others and the flaws in that credential class requires
just the sorts of skill, knowledge, and experts that we
usually rely on those very credentials to establish, and the
emerging social divisions mean that those who have credentials will
often be primarily on one side of the political divide.
(36:11):
Those on the other side will then naturally be suspicious
of those who claim to be traitors to the credential class,
and they may be willing to take a flyer or
two on other less well documented claims to expertise. Again,
I do not have to remind you of examples. There
are no easy answers here. In an ideal world, I
(36:31):
would want university curricula to be set by faculties and
not by state legislatures. That is why, after all, the
majorities who fund those universities want faculty members to teach there,
rather than taking turns teaching the classes themselves. But in
the world in which we actually live, in which faculties
often are not minding the store, someone has to be
(36:52):
responsible for the public fisk, and in practice that means
elevating majoritarian decision making, with all of its flaws and
all of its dangers. Indeed, one of the most serious
consequences of the polarization of the credentialed class is that
society really needs credentials that it can trust, even or
especially unpolitically sensitive matters. When one can't rely on the
(37:15):
judgment of news editors, it just takes too much work
for everyone to sift through all the available information to
decide what's going on. I know because I spend time
curating my Twitter feed and I still.
Speaker 3 (37:27):
Am not sure that I'm fully informed.
Speaker 2 (37:30):
When one can't rely on the judgment of schools of education,
it just takes too much work for everyone to learn
about pedagogy or curriculum design to teach their own kids
at home. When one can't rely on the judgment of
the public health establishment.
Speaker 3 (37:43):
It just takes too.
Speaker 2 (37:44):
Much work for everyone to do their own research and
decide how best to protect their families and others.
Speaker 3 (37:50):
And so on.
Speaker 2 (37:52):
Unusual skill, knowledge, and expertise in different domains are always
going to be in limited supply, and sometimes we need
socially indicators that reliably help us see those things in
others without having to supply them for ourselves. Now, it
may seem somewhat rich to have me here speaking to
you in defense of needing credentials. I am a fancy
(38:13):
pants tenured professor. I am even wearing tweed. But it
does not take much history to know that good things
are easier to destroy than to create, that being hated
by all the right people is not always a marker
of good character or good judgment, and that the result
of burning it all.
Speaker 3 (38:33):
Down is too often dust and ashes.
Speaker 2 (38:37):
The point of a controlled demolition is not just to
create a gaping pit in the ground. It is to
build something better in its place, and it is important
that those put in charge of the former also know
how to do the latter. Now turn from the problem
that this new division poses for society to the problem
it poses for constitutionalism. The task of our current era
(39:00):
will be overcoming these social and political divisions so that
we can have better institutions rather than no institutions at all.
For in the meantime, these very divisions make it harder
for us to rely on our constitutional mechanisms for keeping
a divided society together. Fetzock does not support or oppose nominees,
and I will not do so here either, But I
(39:22):
will note that, according to current reporting, a number of
candidates for nomination to an important government post quote talked
about their vaunted legal theories and constitutional stuff. This is
the expurgated version because this is a family conference. While
the successful candidate quote was the only one who said, yeah,
I'll go over there and start cutting expletive heads. I
(39:46):
have no idea whether this is true or who these
candidates were, but I will say that adherence to vaunted
legal theories is in fact a crucial asset in many
government posts to help restrain the temptation for abuse when
it inevitably arises. And just because you're on one side
of a deep political divide and the other side seems
(40:07):
extremely objectionable does not mean that everything done in service
of your side will be wise or just. There is
no simple answer as to how many risks to take.
Everything depends on the facts and the context. But some
risks can be worth running and others not, and part
of the prudence required of government decision makers is the
ability to tell the difference. Over the next several years,
(40:30):
there are decisions that will have to be made, sometimes
by people now sitting in this room, about how best
to serve the country and how best to defend the
constitution in circumstances where departures may seem very tempting, and
when the illusion of permanent victory beckons. Vaunted legal theories
can often be quite necessary in keeping ourselves grounded and
(40:51):
keeping our motives of vivendi going. Indeed, what made a
version of Judge Bork's originalism so successful over the last
twenty five years was not just the force of political victories,
or even just historical accidents which justices were appointed when,
and so forth. There were plenty of Republican election victories
and appointees to the Warren, Burger and Renquist courts, an
(41:13):
unfortunately few of them were accomplished originalists. Instead, what made
originalism successful such that even Justices Kagan and Jackson would
acknowledge its authority in their confirmation hearings was precisely that
it has been so convincing to many as a matter
of vaunted legal theory, that it is not just a
list of results that successful candidates might write into the Constitution,
(41:36):
something anybody can produce, but a coherent account of what
might actually follow from the constitution we actually have and
fedsoc in its own way, has been a challenge to
the insular nature of the credentialed class by serving as
a form of credentialing institution of its own people give
speeches to student chapters or take part in panel discussions,
(41:58):
and other people hear them and pass on, Oh, that
person was really insightful. They seemed to know what they
were talking about. The claimed list of FEDSOC judges in
twenty sixteen was in no way a product of the
Federalist Society the organization, but it was an indirect result
of the sort of information that the Federalist Society has
managed to surface in a decentralized way over the last
(42:20):
several decades, without judges needing particular fancy pants degrees or
god forbid, high ratings from the American Bar Association.
Speaker 3 (42:31):
So that is why I do not.
Speaker 2 (42:32):
See the answer to these various challenges that face us
today as FEDSOC speaking out on political matters, even important ones,
any more than the answer, as someone jokingly suggested online,
is another strongly worded letter from law school deans. In
our current moment, efforts to deploy institutional trust for political
ends tend not only to fail, but to fail badly,
(42:55):
to politicize the institutions, and that to destroy the original
basis on which they're try rust was earned. Rather part
of why FEDSOC is able to serve. The role that
it does is precisely that it tries not to get
involved in day to day politics, that it doesn't have
detailed articles of faith and doesn't take positions on litigation.
That it lets people of a variety of conservative and
(43:17):
libertarian convictions and habits, even us tweedwearers, make their arguments
to each other and see whom they can convince in
reforming our flawed institutions. It is this spirit of open
competition that we so desperately need. It will require government action,
that is true, but action to open up institutions rather
(43:38):
than simply to crush them. It may mean new universities
and cultural institutions to compete with those in existence now.
It may mean new programs at existing universities on the
model of the Hoover Institution or on the model of
the civic centers now emerging at a number of state
universities today. It may mean new accreditation agencies or other
government policies to open the channel for alternative schools, alternative companies,
(44:02):
alternative industries. But whatever it involves, it will require a
commitment not just to denying the claims to expertise of
the credentialing institutions we have, albeit flawed, but to put
in real efforts to building better ones in their place.
And this same spirit that open channels for competition often
(44:22):
serve us best. That, as Fedsox's Mission statement would have it,
government exists to preserve liberty, and that our greatest task
is to allow those who best know their own needs
to pursue their own good and honorable lives. Is also
what allows our constitution to serve as a modus of
a vendee among different groups of people, many of whom
disagree on deep matters of importance, but who have not,
(44:45):
at least not recently come to blows. Nevertheless, thank you,
m h you pop part so much.
Speaker 3 (45:21):
So I'd just like to say thank you to the professor.
I love his tweed? Where do you Where do you
get that? Uh?
Speaker 2 (45:29):
And uh to give him a bust of my father,
which I hope you will display prominently or maybe at
Harvard not so much.
Speaker 3 (45:38):
I don't know, I will, I promise, Thank you so much.
Speaker 1 (45:44):
Thank
If everyone could find a seed, please find a seat,
(01:42):
if you could, please, If everyone could take a seat, please,
we're gonna get started. There's plenty of seats here in
(02:03):
the front if people want to make their way to
the front. It's an excited crowd. Welcome everyone. Slowly the
(02:28):
crowd quiets. Thank you, Michael. My name is still Dean Reuter.
I am almost tired of saying that, but welcome to
the Robert H. Bork Memorial Lecture. I want to begin,
(02:54):
if I could, with a show of hands, So a
quick show of hands. How many of you are settisfied
being here at the Washington Hilton Hotel? Okay, how many
of you are grudgingly satisfied being here at the Washington Hook. Wow,
(03:14):
that's some valuable information. But I was able to see
hands on the first question. No cat calling. This is
this is a show of hands. Do you understand? Show
of hands? All right, Well, that's good information for us.
Now here's some information for you. The next National Lawyer's
Convention has already been scheduled. It is November sixth through
(03:37):
the eighth, So mark your calendar is November sixth through
the eighth. Somebody said that's early and I'm well aware
of that because we have one less week to plan it.
It will be here at the Washington Hilton Hotel. This
is a tough crowd, you know.
Speaker 2 (03:58):
This is.
Speaker 1 (04:00):
Now let me begin to introduce this lecture if I
we're excited to be hosting, of course, the annual Robert H.
Borg Memorial Lecture, and now turning to Robert Borke's legacy
for a moment, if you'll indulge me, I know everyone
in this room, as a lawyer, knows that it would
be a great thing for you professionally if during your
lifetime as an attorney or legal scholar, you could revolutionize
(04:23):
not only how the legal and policy world think about
anti trust but how they do antitrust. That would be
just an enormous impact in a significant area of law
that I couldn't even fathom if I had a role
in that, the role in that, But likewise, it would
be a remarkable thing to become known as the pre
eminent scholar, the pre eminent thinker and administrative law such
(04:47):
an important area of law that seems to become increasingly
important with implications for separation of powers and limited or
unlimited government. But to do both, to have huge impacts
in trust and ad law. That would be truly astounding.
But certainly, of course, it would be impressive if during
(05:08):
your lifetime you raised and then firmly planted the banners
of originalism and textualism and the legal landscape, if you
revolutionize the way lawyers think about the written word. But
to do all three things, revolutionizing antitrust, administrative law, and
originalism and textualism, all three that's almost otherworldly. I would
(05:33):
say it's impossible, But we all know Judge Bork did
do these three things and much much more. In addition,
he was a friend of the Federalist Society, and his
memory and legacy will endure within the DNA of this
organization for as long as this organization exists. So we
are very pleased and honored to carry on the tradition
(05:54):
each year to recognize his contributions to us and to
the country. And now would to recognize members of the
Bork family who are able to join us today. Bob Bork,
his son, his wife Diana, and their daughter Claire, thank
you for being here. We're honored to welcome our speaker
(06:21):
for today's lecture, Professor Stephen R. Sachs, Professor stax Aptly
is the Antonin Scalia Professor of Law at Harvard Law School,
where he teaches civil procedure, conflict of laws, and seminars
on constitutional law. His research focuses on the theory of
constitutional interpretation, the jurisdiction of state and federal courts, the
(06:44):
history of procedure in private law, and the role of
the general common law in the US legal system. He's
authored numerous articles, essays, and book chapters. He's also an
elected member of the American Law Institute, an advisor to
Alised Project the Restatement of Law Conflict of Laws, a
member of the Judicial Conference's Advisory Committee on Appellate Rules,
(07:07):
and a founding member of the Academic Freedom Aligance. Professor Sachs,
We're so pleased to welcome you here today.
Speaker 2 (07:26):
Thank you very much for that kind introduction. I am
honored by your confidence in being invited to speak here today.
I am honored by all of you taking time out
of your afternoon to come hear me. I apologize that
I have no champagne to offer, and I'm honored by
the decision of some of the students at my law school,
(07:47):
some of whom are here today to choose me as
their advisor, and I'm honored to give this lecture named
for Judge Bork, whose work served as part of the
foundation of modern originalism. This conference has discussed the theme
of group identity and law, and I would like to
speak today on two not entirely unrelated issues of group
(08:07):
identity and the constitution.
Speaker 3 (08:09):
As inspired by some of George Bourg's work.
Speaker 2 (08:13):
Much of politics is identity politics, and it has been
for a very long time.
Speaker 3 (08:17):
There was never a point in our history.
Speaker 2 (08:19):
When questions of identity didn't matter for American politics or
American law. And that is true not only of familiar
categories of identity such as race or sex, but also
of ones that have declined somewhat in influence over time,
such as region or religion, and new categories of education
and credentials. So I'd like to speak today about two
very different problems, some posed by the past and some
(08:42):
posed by the present. First about the problems posed for
our constitutional tradition by those divisions most salient at the founding,
And second about the problems posed for our constitutional tradition,
but also for good governance more generally, of some divisions
becoming newly salient today. In both cases, the Constitution isn't
(09:03):
a full answer to social divisions, whether at the founding
or today, and indeed it doesn't try to be. Rather,
it's an attempt at a modus vivendi, a way that
deeply divided people might seek to live together. The divisions
that we face now are new in every era, and
the difficulties that they pose for constitutionalism or novel two.
But the Constitution has some role to play in how
(09:24):
we respond to them, and organizations like the Federal Society
have some role to play too. We can frame the
first problem by discussing then Professor Borke's famous nineteen seventy
one article on Neutral Principles and some First Amendment Problems,
one of the seminal works of modern originalism. In that article,
Borke considered the view that courts generally and the Supreme
(09:44):
Court in particular, needed to make choices of fundamental values.
Borke argued against this view is inappropriate for a democratic
society where the Constitution does not embody the moral or
ethical choice. He wrote, the judge has no basis other
than its own values on which to set aside the
community judgment embodied in the statute that by definition is
(10:05):
an inadequate basis for judicial supremacy. Now, it's possible to
read this passage as morally relativist, and of course Bork
was not.
Speaker 3 (10:13):
For this purpose.
Speaker 2 (10:14):
He didn't have to deny that questions of value can
have better or worse answers, or that judges, like other people,
can sometimes tell which is which. Instead, he needed only
to recognize that people regularly disagree on which answers are
better than or worse, and to invoke what he called
the presuppositions of a democratic society, in which the people
by and large.
Speaker 3 (10:34):
Get to decide which answers they trust.
Speaker 2 (10:37):
In that kind of society, the officials, including the judges,
have only as much authority as.
Speaker 3 (10:42):
The people have given them. If the people never gave.
Speaker 2 (10:45):
Their authority their judges authority to make certain moral and
political decisions, then the judges can't make them, no matter
how good their moral and political judgment might be. Their
response to the supreme courts making moral and political choices,
then might be who do you think you are? Not
just in the rhetorical sense, but literally, who do you
think you are? What is this supreme court of which
(11:05):
you speak? When we need to settle questions about the
Article three Court's own composition and membership and structure. We
look to the Constitution and to the laws made in
pursuance thereof just as we do to find out these
court's powers or the substantive rules they're supposed to apply.
The theories of judicial supremacy that Bork saw around him
(11:27):
are theories of a very strange world in which Article
three is in the Constitution but nothing else is. Instead,
as Bork pointed out, rather than claim authority to make
moral and political choices on their own, our courts themselves
regularly acknowledge the authority of the founding Instead, as he wrote,
the Supreme Court regularly insists that its results, and most
(11:48):
particularly its controversial results, do not spring from the mere
will of the justices in the majority, but are supported,
indeed compelled by a proper understanding of the Constitution of
the United States. Value choices are attributed to the founding Fathers,
not to the Court. The way an institution advertises tells
you what it thinks its customers demand. Now, for myself,
(12:10):
I would use slightly different language. To my mind, the
founders chose not values, but rules of law. The Commerce
Clause does not say regulating commerce is very important. Instead
describes a specific power and commits it to a specific body.
But the intuition is the same. In our system. We
take the Constitution's enactment as having made certain decisions, and
(12:31):
we take those decisions as revisable only via certain means.
And these expectations are made themselves more visible by just
how loudly the Court keeps proclaiming them whenever it's doing
something fishy. The Supreme Court does not claim an institutionalized
role as tribune of the people, let alone, as Bork
put it, as perpetrator of limited coudeta. Instead, it only
(12:54):
claims the role of enforcing decisions already made, including the
past decisions that give it something to decide. But this
brings us to the first problem that I mentioned above.
Those decisions are those value choices made by the Founders
have only as much authority as we give them today,
and that authority.
Speaker 3 (13:12):
Is perhaps on the wane.
Speaker 2 (13:15):
A few years ago, a colleague asked me, with real concern,
though he was not an originalist himself, how is originalism
supposed to survive given that we no longer think of
the founders with respect. Similarly, at an event in twenty
twenty one, n hy U law professor Kenji Yoshino reportedly
asked Justice Sodomyor whether originalism would become increasingly untenable as
(13:37):
the country's demographic makeup continues to depart substantially from the
makeup of the Framers. Justice Soda Mayor, it was reported,
thought it a fascinating question whether and how her colleagues's
use of originalism will lead to dissonance between what we
are deciding and what the general population accepts as to
what the law should be. Indeed, a criticism of this
(13:57):
kind appeared in the joint dissent in Dabbs. Justices Bryer, Soda, Mayor,
and Kagan pointedly noted that quote the people did not
ratify the fourteenth Amendment.
Speaker 3 (14:07):
Men did.
Speaker 2 (14:08):
Those responsible for the original constitution they wrote, including the
fourteenth Amendment, did not perceive women as equals and did
not recognize women's rights. When the majority says that we
must read our foundational charters viewed at the time of ratification,
it concluded, it consigns women to second class citizenship. So
this is the first problem posed for our constitutional tradition
(14:29):
that I'd like to discuss. If Americans no longer see
themselves in the Founders as they once did? What does
that mean for our use of the Founder's Law? Why
should the two hundred year old decisions of a bunch
of white male property owners, indeed many of them slave owners,
have binding force for us today. If the idea of
virginalism is restoring some past world or past consensus, then
(14:52):
why should those who were excluded from that past consensus,
from whom, or for whom I'm sorry, As Columbia professor
Jamal Green has written, a narrative of restoration may be
deeply alienating, why should they be expected to play along?
I don't mean in any way to understate the force
of this critique, which I see is quite serious. What
I do want to emphasize is the way in which
(15:13):
it's really more about the present than the past. The
claim that we can't see ourselves in the Founders has
more to do with modern identity than past exclusion, with
who is on the outs now and not necessarily who
was rendered voiceless. Then consider the way that it's sometimes
framed that had I lived back then, I wouldn't have
been able to vote. Let's spell out that counterfactual. Who
(15:36):
is the I who would have lived back then. For example,
while the US Constitution banned religious tests for federal office,
in many places, Jews could not hold certain state offices,
and in some playss Catholics couldn't either. The seventeen seventy
six North Carolina Constitution, for example, provided that no person
who shall deny the being of God or the truth
(15:57):
of the Protestant religion shall be capable of holding any
office or place of trust or profit in the Civil
Department within this state. I lived in North Carolina for
a decade. I now live in the Commonwealth of Massachusetts,
and in one sense, had I lived back then, being Jewish,
I could not have been a member of the Massachusetts
legislature that voted on ratifying the free Exercise Clause. In
(16:18):
that sense, the people didn't ratify the First Amendment either,
Protestants did. But we still think that the First Amendment
has forced for us today and not just for Protestants now.
I am not trying to argue by any means that Jews, Catholics,
and African Americans were all equally oppressed of the Founding.
Speaker 3 (16:35):
I think that would be absurd.
Speaker 2 (16:36):
What I am trying to argue is that The reason
we today see some of these exclusions as less meaningful
and other exclusions as more deeply painful is not just
because of the depth of those exclusions in the past.
It's also because of our beliefs about those exclusions today.
In modern American society, Jews and Catholics have not usually
(16:57):
been on the outs. Today's societ is not nearly so
stratified along religious lines as it used to be, so
many people don't think of these past religious exclusions as
deep features of the Founding that require drastic modern remedies.
So too, one would think, for the injustices worked by
the Chinese exclusion acts. But other social distinctions of race
(17:19):
and sex may be very much still with us, and
so many people see these divisions as dividing us from
the Founding generation. That doesn't make these divisions less real,
but it does show that our task is to lessen
the divisions today rather than to attempt to go about
fixing the past. That these concerns are about the present
(17:39):
and not the past also explains why we don't worry
very much about playing the counterfactual forward arguments about voting
restrictions that the Founding generally aren't designed to promote a
specific package of legal rules that would have resulted had
our past society been more just. For example, and as
I argue in a forthcoming article to its founding era
(18:00):
clinic critics, my colleague Michael Klarman argues, the Constitution was
seen as a white male elite project, a scheme to
favor the mercantile interest. Some backcountry farmers thought. In that case,
more universal suffrage on grounds of property ownership as well
as racers sex might well have led to no Constitution
at all, or else to something closer to the Articles
(18:21):
of Confederation, with many fewer powers for Congress and many
fewer limits on the states. Remember, in an era of
fugitive slave acts, plantation owners might often have taken a
broader view of inherent national authority than those whom they enslaved.
Political parties and interest groups flip flop on federalism every day,
so there's no reason to suspect that ordinary Americans would,
(18:43):
by virtue of their race, have held any consistent views
on federalism across the centuries. If we want to resolve
these divisions, one might then conclude we should focus on
the actual concerns of actual people today. Instead of symbolically
incorporating the hypothetical opinions of other peopleeople who kind of resembled.
Speaker 3 (19:01):
Them two hundred years ago.
Speaker 2 (19:04):
In some ways, this problem is very familiar, As Green notes,
any constitutional theory needs to think about the dead hand problem.
Why the decisions of people more than two hundred years ago,
all of whom are now long dead, are binding on
their own descendants, and any theory adequate to deal with
that problem will usually be adequate to explain why those
decisions might have authority for the descendants of others. At
(19:27):
the founding, roughly half of my children's ancestors were somewhere
in Eastern Europe we don't know where. Another portion were
in Western Europe, some were in the American South, and
some were held in slavery, either in Puerto Rico or
what's now the Dominican Republic. Almost none of them, even
the men, were consulted in forming the constitution, but almost
none of them would have shared my children's views and
(19:49):
interests either. What really seems to matter in deciding whether
people at the Founding were or were not like me
is not whether they shared my social characteristics, but whether
they share my views on questions of importance. But as
Chris Green notes, what would the framers do if they
agreed with us about everything? Is just another way of
asking what would we do? And we do not need
(20:11):
a constitution to tell us that. Instead, when my ancestors
came to the United States, they chose to join its
society and accept its citizenship on its own terms. Likewise,
the extension of the right to vote on the basis
of race in eighteen seventy, of sex in nineteen twenty,
to Native Americans in nineteen twenty four, and so on
did not erase all past injustices, but the acceptance and
(20:33):
use of that right did represent a claim to membership
in an existing polity with existing law, rather than an
effort to replace that polity with something new. Law is
always backwards looking in that way, As my old boss,
the late Judge Williams once pointed out, at least until
we devise time machines, a change in law can only
(20:54):
have its effects in the future. Enacting a law does
nothing nothing at all unless it is applied by people
in the future who will treat it as part of
their legal past, treating past law as staying law until
it's lawfully changed, gives current lawmakers a very important power,
namely the power to leave things alone, and it lets
(21:16):
us impose conditions on when we do change the law,
reassuring those who lose an election or two by requiring
a very broad and formal consensus for fundamental change, say
two thirds of each House and three quarters of the states.
We can see this most clearly in imagining how our
system might work if it didn't require that kind of
(21:37):
reliance on the past. As Georgetown professor Lewis Michael Sideman
has put it, instead of arguing about what is to
be done, we argue about what James Madison might have
wanted done two hundred and twenty five years ago. To Sidemen,
we should instead rely on a network of customs, rules, precedents,
and legislative texts, which can be disregarded when advocates persuade
people that they are unjust, ineffective, or outdated. Or consider
(22:01):
the argument Yale professor Samuel Moyne and my colleague griandorfler
that we should adopt a system of legislative supremacy, doing
politics through ordinary statute rather than fighting over who controls
the heavy weaponry of constitutional law from the past if
legislatures just passed rules and protected values majorities believe in,
they argue, the distinction between higher law and everyday politics
(22:23):
effectively disappears, and we could have the present electorate decide
on fundamental values like racial equality or environmental justice. The
difficulty here, as others have pointed out, is that even
legislative supremacy requires some higher law. In order to know
know really who is this Congress of which you speak,
we need some rules governing Congress's composition and membership, rules
(22:47):
that we currently take from the Constitution, just like all
of the rules, but specifying which powers belong to this
Congress and which belong to other bodies. A world of
legislative supremacy is, like a said above, a very strange
world in which Article one is part of the Constitution
but nothing else is. And this problem shows up in
spades when we imagine with sidemen relying instead on a
(23:10):
loose network of customs and precedents, a sort of British
unwritten constitution for the United States. The British have parliamentary
sovereignty to make that system work, but we don't. A
world with no written constitution but with conflicting centers of
power in the States, the White House, Congress, and the
Court is very hard to get right. What, for example,
(23:30):
prevents the current president elect from running for a third
term in twenty twenty eight, other than an antiquated constitutional text, or,
as Sideman might put it, what Earl Mitchener and Robert
Taft wanted done seventy seven years ago. The point here
isn't that originalism is the only way of running a
legal system. The point is that the dead hand problem
is a problem regardless of what legal system you use.
(23:53):
Because the people cannot always be assembled. There must be
some way that the legal system acts, and also some
way whenever it isn't acting, that we identify the law
that was made the last time it acted, even in
the benighted past. And as it happens, other than originalism,
there is no way that we here happen to recognize
(24:13):
of fully acknowledging a change in our fundamental law. There
are plenty of rules that one might call black letter
law today that are not in the original Constitution, growing
wheat in your backyard, as Interstate Commerce say, but you
know here that's a laugh line, but no black letter
rule about how those rules get to be black letter
(24:35):
law other than Article five, and even the court that.
Speaker 3 (24:39):
Decided wickerd v.
Speaker 2 (24:40):
Filburn had to claim that its decision followed naturally from
the Constitution, indeed that it was quote a return to
the principles first enunciated by Chief Justice Marshal in Gibbons Viagden,
a mere application of the Constitution's timeless principles to present facts.
And that is why the Dobbs dissenter's response was not
to get rid of the male ratified fourteenth Amendment, even
(25:03):
though its ratification was in fact opposed by early feminists,
because its section two protected suffrage from male citizens only
was the first use of the word male in the Constitution.
Neither did the dissenters read the amendment counterfactually to imagine
what it would have said in a world where women
had participated fully, but the Amendment passed nonetheless. Instead, the
(25:25):
dissenter's response was to apply the Amendment by what they
claimed to be its original terms, by happy coincidence, They argued,
the male framers of the fourteenth Amendment had not defined
rights by reference to the specific practices existing at the time,
but rather in general terms to permit future evolution.
Speaker 3 (25:45):
If that were true, then The question for us today
would be the correct application of those.
Speaker 2 (25:50):
General terms to present facts. But of course, whether it
is true, or whether the Fourteenth Amendment codified past rights
rather than evolving new ones, is a question that can
only be settled as a matter of original history by
correctly understanding which rule its actual framers and ratifiers wrote down. Now,
the legal validity of these rules is one question. Their
(26:11):
binding authority in our consciences another. But we who value
the society in which we live, and who intend to
treat those who live here with us as our fellow citizens,
notwithstanding our divisions, may have good reason often to treat
what's law as law, what is widely acknowledged as law,
including what is widely acknowledged as.
Speaker 3 (26:29):
The exclusive means of legal change.
Speaker 2 (26:32):
And that is true even if our law today is
not what we would like it to be, or is
made long ago in a way that it should not
have been made. Remember, for all of the limits on
the franchise that attended its adoption, the Constitution itself was
not made by a homogeneous group of rich white men
who already agreed on everything. It was made by an
extremely heterogeneous group who disagreed hotly on all sorts of things,
(26:57):
including on the evils of human slavery. And the reason
that it has worked as a modus vivendi for so
many years, to the extent that it has, was that
it was mostly able to channel disagreements like these in
productive ways, encouraging people who wanted fundamental change to convince
broad swaths of their fellow citizens, rather than just to
win the next election by a margin of fifty percent
(27:18):
plus one. In a polarized era, though, the idea of
persuading broad swaths and one's fellow citizens to do anything
important may seem impossible. And so this brings us to
the second problem, not just of divisions that have been
(27:40):
salient for centuries, but divisions becoming newly salient today. Returned
to Judge Bork and his paper on Neutral Principles. Bork
had looked around him in nineteen seventy one and seen
a judiciary unable or unwilling to defend its claims on
solid intellectual grounds. Cases like griswoldby Connecticut, whatever one thinks
of they're outcome, were failures simply as a matter of
(28:02):
legal craft. As he described it, Griswald was an unprincipled
decision both in the way in which it derives a
new constitutional right and in the way it defines that right,
or rather fails to define it. The Court soon followed
up Griswold with Baird the Eisenstadt, in which it announced
that if the right to marital privacy that was announced
in Griswald means anything, it applies equally to quote the individual,
(28:27):
married or single. As was noted by my former colleague
Jeff Powell, this is a claim that cannot be made
quote with a straight face and expecting to be taken seriously.
The difference between reasoned judgment and authoritarian dictat has become obscure.
The growth of modern originalism, Powell argued, was a quote
(28:48):
response to a situation in which the Constitution's most important
interpreters not just a few crackpots here and there, but
a majority of justices.
Speaker 3 (28:56):
Of the Supreme Court of the United States.
Speaker 2 (28:58):
Quote could present the logic of the Eisenstadt opinion as
though it were a respectable legal argument, rather than a
non sequitur that revealed a sort of contempt for the
notion of reason and decision and for the litigants, lawyers,
and general public for whom the opinion was supposed to
explain the court's decision.
Speaker 3 (29:18):
This brings us to a second piece of.
Speaker 2 (29:19):
Writing by Judge Bork, his nineteen ninety six essay on
the End of Democracy In first Things, this essay was
published twenty five years after Neutral Principles, a quarter century
in which many new justices had been appointed, but in
which the Supreme Court had, in Borg's view, only strayed
further from the original Constitution, doubling down on the errors
of the Warren and Burger Courts. And so he concluded
(29:42):
this tendency of courts was the inevitable result of our
written constitution and the power of judicial review power corrupts.
An unchecked judicial power inevitably lead to unchecked abuse. To
halt the transformation of our society and culture by judges,
he suggested a constitutional amendment to ban judicial or alternatively
to allow Congress to override the courts, or, in the
(30:04):
last need, it may be that elected officials should simply
refuse to comply with their decisions. In other words, this
anticipated the various positions of professors Moines, d'orfler and Sideman
many years later, proposing populist majoritarian solutions to the defects
of a credential judicial elite. Yet solutions that, as were acknowledged,
(30:25):
carried serious costs and dangers of their own. Looking back
on this essay twenty five one years later, one sees
immediately that the arrow of history does not always point
in the same direction. Roe has been overruled. The courts
are plainly more originalists than they used to be. Attitudes
towards acceptable forms of judging have been transformed. At no
(30:46):
time in recent history has the federalist Society's position that is,
the province and duty of the judiciary to say what
the law is and not what it should be, been
more widely echoed and accepted. But in other ways the
situation is far more grave. The sorts of institutional failures
that Bork saw in the courts and to which he
proposed legislative overrides some populist and majoritarian solution, have been
(31:08):
revealed in a wide range of institutions. These institutions are
often run by folks with impeccable credentials, by which I
mean the socially recognized indicators of unusual skill, knowledge, or experience,
and yet for all their elite credentials in many fields,
they've done a pretty lousy job. We have a public
health establishment that's lost public confidence and vitally important matters,
(31:32):
having exaggerated some dangers and underemphasized others.
Speaker 3 (31:36):
We have educational institutions.
Speaker 2 (31:38):
That have sought ever more funding but have failed to
maintain effective literacy levels over time. We have a national
press that too often fails to inform or indeed often
leaves one knowing less, and so on and on and on.
I am sure that everyone in the audience here could
recite his or her own litany of institutional failures. In
too many areas, the credentialed the adults in the room
(32:01):
have not acted wisely or well. And yet, in failing
to act wisely or well, they have acted in predictable, politicized,
and culturally insular ways. Again, I do not need to
remind you of the examples. The concern here is not
merely that our credentialed class is performing less well, but
that this is both cause and symptom of a growing
(32:22):
social and political division between those who are members of
this credentialed class and those who are not. And this
new source of division poses a second problem both for
society and for constitutionalism. And I would like to discuss both,
let's start with society. Per recent polls, fewer people say
(32:43):
that it would matter to them if a family member
married someone of another race than if that family member
married someone who voted for the other party. Now, this
is based on what people will admit to upholster, and
it does not suggest by any means that party identification
is more salient to Americans today than race. While greater
interracial understanding is extraordinarily welcome, this cultural division along party
(33:05):
lines does represent something new and in my view, very worrisome.
As we have seen in the last election, our politics
are becoming somewhat less polarized by our existing divisions of
race and ethnicity, and somewhat more polarized by gender and
especially by class. Not income necessarily, but by education and
by a certain kind of social position. The sorts of
(33:27):
people like me who have college or indeed postgraduate degrees,
people who work in culturally influential institutions like universities.
Speaker 3 (33:35):
People who live in zip codes where a whole foods.
Speaker 2 (33:37):
Is to be found. These folks have, to some extent
come apart socially and politically from those who do not,
and the more politically insular the institutions staffed by such
people are the easier it is for politics to affect
their judgment, since, after all, everyone around you and everyone
you know thinks pretty much the same thing. So trusting
(33:59):
these institutions leads one in.
Speaker 3 (34:02):
A more polarized and insular.
Speaker 2 (34:03):
Direction, because it leads to distrust of all those who
would contradict them.
Speaker 3 (34:07):
And the same is.
Speaker 2 (34:08):
True on the other side, because distrusting those institutions, which
is often the mark of a crank, encourages one to
seek out fellow cranks who will helpfully affirm one's own views.
This cycle of political polarization makes effective government correction not
any correction at all, but effective correction that much more difficult.
(34:28):
In the words of essayist Scott Alexander, from whom the
next few paragraphs are, elites have enough advantages in power, connections, education,
and so on, that in the natural course of events,
they always come out on top. Trying to come up
with a system where elites don't come out on top
is an almost feutile task, one where you will be
constantly pumping against entropy. The normal course of politics is
(34:50):
various coalitions of elites and populace, each drawing from their
own power bases. A normal political party, like a normal
anything else, has elite leaders, analysts, propagandists, and managers, plus
populous foot soldiers. Then there's an election, and sometimes your
elites get in. Sometimes their elites get in. But getting
a political party that's against the elites is really hard
(35:10):
and usually the sort of thing that gets claimed rather
than accomplished, because elites rise to the top of everything.
But sometimes political parties can run on an explicitly anti
elite platform. In theory, this sounds good, nobody wants to
be elitist. In practice this often gets really nasty quickly.
Democracy is a pure numbers game, so it's hard for
the elites to control. The populace can genuinely seize the
(35:32):
reigns of democracy if it really wants, But if that happens,
the government will be arrayed against every other institution in
the nation.
Speaker 3 (35:38):
Elites rise to the.
Speaker 2 (35:39):
Top of everything, media, academia, culture, so all of those
institutions will hate the new government and be hated by
it in turn.
Speaker 3 (35:46):
Close quote.
Speaker 2 (35:49):
Now, fixing that division, that separation of the credentialed class
from others and the flaws in that credential class requires
just the sorts of skill, knowledge, and experts that we
usually rely on those very credentials to establish, and the
emerging social divisions mean that those who have credentials will
often be primarily on one side of the political divide.
(36:11):
Those on the other side will then naturally be suspicious
of those who claim to be traitors to the credential class,
and they may be willing to take a flyer or
two on other less well documented claims to expertise. Again,
I do not have to remind you of examples. There
are no easy answers here. In an ideal world, I
(36:31):
would want university curricula to be set by faculties and
not by state legislatures. That is why, after all, the
majorities who fund those universities want faculty members to teach there,
rather than taking turns teaching the classes themselves. But in
the world in which we actually live, in which faculties
often are not minding the store, someone has to be
(36:52):
responsible for the public fisk, and in practice that means
elevating majoritarian decision making, with all of its flaws and
all of its dangers. Indeed, one of the most serious
consequences of the polarization of the credentialed class is that
society really needs credentials that it can trust, even or
especially unpolitically sensitive matters. When one can't rely on the
(37:15):
judgment of news editors, it just takes too much work
for everyone to sift through all the available information to
decide what's going on. I know because I spend time
curating my Twitter feed and I still.
Speaker 3 (37:27):
Am not sure that I'm fully informed.
Speaker 2 (37:30):
When one can't rely on the judgment of schools of education,
it just takes too much work for everyone to learn
about pedagogy or curriculum design to teach their own kids
at home. When one can't rely on the judgment of
the public health establishment.
Speaker 3 (37:43):
It just takes too.
Speaker 2 (37:44):
Much work for everyone to do their own research and
decide how best to protect their families and others.
Speaker 3 (37:50):
And so on.
Speaker 2 (37:52):
Unusual skill, knowledge, and expertise in different domains are always
going to be in limited supply, and sometimes we need
socially indicators that reliably help us see those things in
others without having to supply them for ourselves. Now, it
may seem somewhat rich to have me here speaking to
you in defense of needing credentials. I am a fancy
(38:13):
pants tenured professor. I am even wearing tweed. But it
does not take much history to know that good things
are easier to destroy than to create, that being hated
by all the right people is not always a marker
of good character or good judgment, and that the result
of burning it all.
Speaker 3 (38:33):
Down is too often dust and ashes.
Speaker 2 (38:37):
The point of a controlled demolition is not just to
create a gaping pit in the ground. It is to
build something better in its place, and it is important
that those put in charge of the former also know
how to do the latter. Now turn from the problem
that this new division poses for society to the problem
it poses for constitutionalism. The task of our current era
(39:00):
will be overcoming these social and political divisions so that
we can have better institutions rather than no institutions at all.
For in the meantime, these very divisions make it harder
for us to rely on our constitutional mechanisms for keeping
a divided society together. Fetzock does not support or oppose nominees,
and I will not do so here either, But I
(39:22):
will note that, according to current reporting, a number of
candidates for nomination to an important government post quote talked
about their vaunted legal theories and constitutional stuff. This is
the expurgated version because this is a family conference. While
the successful candidate quote was the only one who said, yeah,
I'll go over there and start cutting expletive heads. I
(39:46):
have no idea whether this is true or who these
candidates were, but I will say that adherence to vaunted
legal theories is in fact a crucial asset in many
government posts to help restrain the temptation for abuse when
it inevitably arises. And just because you're on one side
of a deep political divide and the other side seems
(40:07):
extremely objectionable does not mean that everything done in service
of your side will be wise or just. There is
no simple answer as to how many risks to take.
Everything depends on the facts and the context. But some
risks can be worth running and others not, and part
of the prudence required of government decision makers is the
ability to tell the difference. Over the next several years,
(40:30):
there are decisions that will have to be made, sometimes
by people now sitting in this room, about how best
to serve the country and how best to defend the
constitution in circumstances where departures may seem very tempting, and
when the illusion of permanent victory beckons. Vaunted legal theories
can often be quite necessary in keeping ourselves grounded and
(40:51):
keeping our motives of vivendi going. Indeed, what made a
version of Judge Bork's originalism so successful over the last
twenty five years was not just the force of political victories,
or even just historical accidents which justices were appointed when,
and so forth. There were plenty of Republican election victories
and appointees to the Warren, Burger and Renquist courts, an
(41:13):
unfortunately few of them were accomplished originalists. Instead, what made
originalism successful such that even Justices Kagan and Jackson would
acknowledge its authority in their confirmation hearings was precisely that
it has been so convincing to many as a matter
of vaunted legal theory, that it is not just a
list of results that successful candidates might write into the Constitution,
(41:36):
something anybody can produce, but a coherent account of what
might actually follow from the constitution we actually have and
fedsoc in its own way, has been a challenge to
the insular nature of the credentialed class by serving as
a form of credentialing institution of its own people give
speeches to student chapters or take part in panel discussions,
(41:58):
and other people hear them and pass on, Oh, that
person was really insightful. They seemed to know what they
were talking about. The claimed list of FEDSOC judges in
twenty sixteen was in no way a product of the
Federalist Society the organization, but it was an indirect result
of the sort of information that the Federalist Society has
managed to surface in a decentralized way over the last
(42:20):
several decades, without judges needing particular fancy pants degrees or
god forbid, high ratings from the American Bar Association.
Speaker 3 (42:31):
So that is why I do not.
Speaker 2 (42:32):
See the answer to these various challenges that face us
today as FEDSOC speaking out on political matters, even important ones,
any more than the answer, as someone jokingly suggested online,
is another strongly worded letter from law school deans. In
our current moment, efforts to deploy institutional trust for political
ends tend not only to fail, but to fail badly,
(42:55):
to politicize the institutions, and that to destroy the original
basis on which they're try rust was earned. Rather part
of why FEDSOC is able to serve. The role that
it does is precisely that it tries not to get
involved in day to day politics, that it doesn't have
detailed articles of faith and doesn't take positions on litigation.
That it lets people of a variety of conservative and
(43:17):
libertarian convictions and habits, even us tweedwearers, make their arguments
to each other and see whom they can convince in
reforming our flawed institutions. It is this spirit of open
competition that we so desperately need. It will require government action,
that is true, but action to open up institutions rather
(43:38):
than simply to crush them. It may mean new universities
and cultural institutions to compete with those in existence now.
It may mean new programs at existing universities on the
model of the Hoover Institution or on the model of
the civic centers now emerging at a number of state
universities today. It may mean new accreditation agencies or other
government policies to open the channel for alternative schools, alternative companies,
(44:02):
alternative industries. But whatever it involves, it will require a
commitment not just to denying the claims to expertise of
the credentialing institutions we have, albeit flawed, but to put
in real efforts to building better ones in their place.
And this same spirit that open channels for competition often
(44:22):
serve us best. That, as Fedsox's Mission statement would have it,
government exists to preserve liberty, and that our greatest task
is to allow those who best know their own needs
to pursue their own good and honorable lives. Is also
what allows our constitution to serve as a modus of
a vendee among different groups of people, many of whom
disagree on deep matters of importance, but who have not,
(44:45):
at least not recently come to blows. Nevertheless, thank you,
m h you pop part so much.
Speaker 3 (45:21):
So I'd just like to say thank you to the professor.
I love his tweed? Where do you Where do you
get that? Uh?
Speaker 2 (45:29):
And uh to give him a bust of my father,
which I hope you will display prominently or maybe at
Harvard not so much.
Speaker 3 (45:38):
I don't know, I will, I promise, Thank you so much.
Speaker 1 (45:44):
Thank
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