The Volokh Conspiracy

Last week, I posted about a conference at Harvard on the topic of intellectual diversity in the legal academy. I’m pleased to report that the conference was a great success, well conceived and well executed by the excellent students of the Harvard chapter of the Federalist Society. If nothing else, it succeeded in shining a light on the stark political / jurisprudential / methodological imbalance at the top law schools. It turns out that many of these schools are just like Georgetown Law — where most students will graduate after three years without ever once laying eyes on a conservative or libertarian professor at the front of a classroom.

Harvard Law School Dean Martha Minow was unable to attend the conference, but she did provide a written statement, which is an eloquent endorsement of intellectual diversity:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public service. Here, too, debates within and across groups deepen scholarship and test law reform ideas. It would be wonderful if one did not have to leave Harvard Law School to discover objections and improvements to descriptions and revisions of financial institution behavior, consumer products safety, national security strategies, federalism, and constitutional adjudication, just to name a few current subjects of research and reform work, but it will suffice if being at Harvard Law School affords faculty and students with super preparation for any ideas and concerns that may be encountered elsewhere. This is the path of truth-seeking; this is the method of iterative improvement. Yet there is at least one more crucial reason for placing priority in intellectual diversity within this institution. The bet made by commitments to the rule of law and to democracy is that we can use reason and participatory institutions to govern diverse and often contentious individuals and groups. That bet cannot prevail without cultivation of leaders who set the example for civil and curious engagement across all kinds of divides—be they defined by race, region, class, language, political party, gender, ideology, or other signifiers of difference. Modeling and cultivating honest and engaged discussion across lines of difference is not only our best practice. It is our commitment to make good on the privileges that the Harvard Law School enjoys, reflects, and bestows.

John Stuart Mill also wrote, “In all intellectual debates, both sides tend to be correct in what they affirm, and wrong in what they deny.” I am not sure he is right, but I think we will make more progress testing this and many other propositions in the company of talented people who draw sustenance from varied and clashing intellectual resources. We may even find surprising points of agreement and convergence, but we would not even know of this wonderful possibility in the absence of intellectual diversity.

Video of the conference is available here. Some highlights include co-conspirator Jim Lindgren’s presentation of the startling empirical data on intellectual diversity (Panel 1 – 6:10); Jack Goldsmith’s powerful remarks about what it is like to be a right-leaning professor at Harvard Law School (Panel 1 – 18:30); and Robby George’s eloquent observations about the “non-conscious discrimination” that is at least partially responsible for this extreme imbalance (Panel 3 – 20:30).

Watch the whole thing.

In April, I will be speaking at several New York City law schools on “Israel’s Borders in International Law,” courtesy of the Federalist Society.
April 23: New York Law School (noon); Hofstra (6pm); April 24th: Touro (noon). Conspiracy readers are encouraged to introduce themselves.

I will be speaking at several law schools and universities in Ohio and Florida the week of March 18th (our spring break). All events are free and open to the public. Always happy to meet readers of the Conspiracy. Additional information at the links.

March 18th, Case Western Reserve University Law School (noon), “Piracy and the Limits of International Law.”

March 18th, Ohio State University, The New Palestinian State.

March 19th, Ohio University, “Disputing Occupation: Israel’s Borders in International Law”

March 21st: Florida International Law School, “Israel & International Law.”

Last Friday, I was pleased to take part in a panel at the Federalist Society convention on national security and international law, and whether they are in conflict (or at least serious tension).  It featured an excellent lineup with many different viewpoints: Sarah Cleveland and Rosa Brooks (law professors who had served during the Obama 1 administration in senior posts in the State Department and Defense Department, respectively), Julian Ku (most recently, co-author with John Yoo on the very interesting book Taming Globalization), Gregory McNeal (Pepperdine Law professor who knows, I believe, more than any person who has not served in government in the last couple of years about the decision-making process of targeting in targeted killing; his article on Afghanistan targeting is essential reading on actual US practices), and me.  John McGinnis (Northwestern, author of this particularly interesting article on democracy and human rights with VC’s very own Ilya Somin) served as moderator.

The panel had possibly fewer fireworks and disagreements that might have been anticipated, given the range of views on the panel, but that was largely on account of the framing of the question.  When it comes to national security, at least as armed conflict, international law is enabling for the United States, and indeed serves as the core framework structuring how the US does it.  It does it according to a long, long, long tradition of the customary and treaty law of war, as the US has understood, interpreted, and practiced it.  The fundamental law of targeting, for example – target combatants, don’t target noncombatants – is not just an imposed rule on military practice, it is military practice.  So although there are areas of international law which raise serious questions about democratic sovereignty and  such in relation to national security concerns, international law in the form of the fundamental laws of war is baked into the American government’s DNA.  So any debates have to be much more nuanced than yes or  no.

As a consequence, much of the argument came down to how capacious international law is in accepting varying interpretations and state practices on crucial areas of national security.  Many of the areas of currently sharp debate – over targeted killing programs, for example, or striking across sovereign borders – are actually surface arguments over very deep differences in what one takes as possible ways to interpret international law, in some strictly formalist but frankly not very realistic sense, or something that takes politics, diplomacy, real world concerns into account in how law is interpreted and evolves.  If you see it in the way the US government traditionally has in these areas – as capable of responding to security threats and new security threats in an evolving, pragmatic, and flexible way – then you think international law is not especially a threat to US national security, at least as regards the conduct of war.  To the extent one sees international law as an activity whose authority and legitimate interpretation is vested in international bodies and officials, such as special rapporteurs, or professors and academics, then one is going to see much more tension.  As John Bolton noted several years ago (article is not online), much of the tension over international law is less what it is than who decides – it purports to shift the decision-maker away from democratic processes to something or someone else.

Rosa Brooks, a Georgetown law professor and former Defense Department official who now has a particularly interesting blog at Foreign Policy, posed a particularly interesting, broad challenge: if international law is traditionally the friend of “weak” states (which is how the US historically saw it in its early days), then the US should have a growing interest in international law as a shared enterprise because (face it) the US is growing weaker.  It will be a multipolar world, and in that world, the United States will not have the influence or power it had.  In that case, international law is our friend, a way of leveraging our declining influence.

That somewhat mischievously sweeping claim got some attention from the audience – and from me.  As it happens, my book on US-UN relations, Living with the UN: American Responsibilities and International Order, has as one of its main themes the way in which a loose and undemanding US hegemony provides a parallel system to the system of formal international law and organizations, in security but also other matters.  One of the book’s main points is that decline of the United States as a hegemon, were it to occur, would promote much greater insecurity in the world; a multipolar world, as David Rieff pointed out years ago, is more competitive, not more cooperative.  Moreover, the book also concludes, those who see the formal system of international law and organizations as the locus of universal values such as human rights might consider that, in fact, much of that universalism exists under the sheltering sky of American hegemony.  If that hegemony fades, a lot of the universal values and the ability to realize them disappears, too.

(I was also delighted to see several fellow Conspirators at the convention, Orin and – first time meeting, amazingly! – David Bernstein.  Let me also belatedly welcome our new Conspirators, Eugene and Nick.  I am slowly reentering the blogging world, and I have missed being here at VC.)

As Jonathan and Ilya have recently pointed out, Reason Magazine’s writers are overwhelmingly voting for Gary Johnson, or they are not voting at all.

By contrast, most libertarian law professors of my acquaintance are supporting Romney. (And even back in 2008, when some libertarians supported Obama, this was a distinct minority position among libertarian law professors–though David Post did support Obama on this blog.) Why the difference? One reason, undoubtedly, is that law professors have a much greater than average concern about the Supreme Court. And while one can make the case that a libertarian whose primary concern is gay rights or abortion would prefer a Court with Democratic appointees, here’s something to keep in mind, from a post I wrote back in October 2008:

Libertarians have been heavily involved in some of the most important constitutional Supreme Court litigation of the last two decades, either in terms of bringing the case, being among the most important advocates of one side’s constitutional theory, or both. Among the cases in this category are Lopez, Morrison, Boy Scouts v. Dale, U.S. Term Limits, Grutter, Gratz, Kelo, Raich, Heller, and probably a few more that I’m not thinking of offhand. With the minor exception of Justice Breyers’ vote in Gratz, in each of these cases, the ONLY votes the libertarian side received were from Republican appointees, and all of the Democratic appointees, plus the more liberal Republican appointees, ALWAYS voted against the libertarian side. The latter did so even in cases in which their political preferences were either largely irrelevant (Term Limits), or should have led them to sympathize with the plaintiff (Lopez, Kelo, Raich).

To those examples we can add McDonald, Citizens United, American Tradition Partnership, NFIB v. Sebelius, and, I’m sure, a few others that I’m forgetting.

A broader point is that thanks in part to the “fusionist” (libertarian-conservative) nature of the Federalist Society, and the fact that conservative law professors and other elite conservative lawyers tend to be much more libertarian-leaning than conservative voters or elected officials, libertarians have real influence in conservative, and therefore Republican, legal circles. Richard Epstein and Randy Barnett are “rock stars” on the Federalist Society circuit, and other libertarians, not excluding myself, are frequent guests at Federalist Society events. Libertarian legal books get favorable or at least respectful reviews in conservative venues like the Wall Street Journal, National Review, Commentary, and the Claremont Review of Books. The same books don’t get bad reviews in liberal publications; they simply get ignored. I’ve never heard of a conservative professor objecting to a libertarian potential colleague on ideological grounds, but it happens with some frequency among liberal professors.

In short, for the most part modern liberal legalism doesn’t take libertarian ideas seriously, and when it does it tends to be hostile. Modern legal conservatism, on the other hand, has substantial libertarian influence. Given that the home of modern legal liberalism is the Democratic Party, and the home of modern legal conservatism is the Republican Party, it’s not surprising that libertarian law professors tend to overall prefer the latter, albeit typically as the lesser of two evils.

UPDATE: It’s also worth noting that Republican presidents have occasionally appointed libertarian-leaning judges, from Alex Kozinski to Janice Brown, and others in between, to the federal courts. I can’t think of any similar examples from the Democratic side. Republican-appointed judges have been very friendly to libertarian law clerks (who go on to become law professors). Democratic-appointed judges, not so much. Libertarian law professors who have held high-ranking government positions–Brad Smith, Todd Zywicki, among others–have almost always done so at the instigation of Republicans, not Democrats. And so on.

At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional.  The post concludes with a thought on what direction the Supreme Court might take when it confronts the constitutionality of DOMA:

Even if the Court is inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.

UPDATE:  Ed Whelan argues that the analysis of the First Circuit in Massachusetts v. Dep’t of HHS would also result in the invalidation of state laws confining marriage to opposite=sex couples.

This Thursday at 12:15 PM, I will be debating the individual mandate case at UCLA Law School with UCLA professor Jonathan Varat. The event is sponsored by the UCLA chapter of the Federalist Society.

This week I’ll be discussing same-sex marriage at two different student chapters of the Federalist Society. One is today at noon at the University of Missouri-Kansas City School of Law. Tomorrow is at 12:30 at the University of Kansas School of Law in Lawrence. In both places, my sparring partner will be Dale Schowengerdt of the Alliance Defense Fund.  The events are open to the public.

Last week, the Federalist Society hosted a symposium on cybersecurity that you can watch here (morning panel, focused on national security issues), here (lunch address), and here (afternoon panel, focused on business and criminal law issues).

Two VC bloggers participated in the symposium. Stewart Baker gave the lunchtime keynote address, which you can watch here:

I gave a few comments criticizing the Obama Administration’s proposals to expand the Computer Fraud and Abuse Act, which you can watch here:

Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland.

Gibbons is certainly a good foundation for advocates of strong federal powers. As the Supreme Court later wrote in Wickard v. Filburn, Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Indeed, Wickard itself did not purport to go any further than Gibbons had gone. Yet too many people know Gibbons only from expurgated versions in casebooks; thus they rely on some general phrases in Gibbons, and they infer that the commerce power encompasses everything that has interstate effects. Yet reading the full text of Gibbons ends the need to build speculation upon speculation. According to Chief Justice Marshall, the commerce power does not encompass:

that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description....

(Emphasis added.) Of course one may argue that Chief Justice Marshall was wrong, and that it would be better if “health laws of every description” could be enacted by the national government. But that would not be an originalist argument, and it would certainly not an argument for which one could cite Gibbons v. Ogden.

Some advocates of the current health control law also point to McCulloch v. Maryland to bolster their favored interpretation of the Necessary & Proper clause. These interpretations are not consistent with Chief Justice Marshall’s own understanding of what McCulloch said, and what he believed that “necessary and proper” includes. When McCulloch was decided, it came under fierce criticism, and so Chief Justice Marshall penned a series of pseudonmyous newspaper essays defending the decision. (That the essays, like The Federalist, were written pseudonymously makes them no less valuable.) The essays are collected in the book John Marshall’s Defense of McCulloch v. Maryland, published by Stanford University Press in 1969, and edited by Gerald Gunther. Having studied the essays, Professor Gunther wrote in his introduction, “Clearly these essays give cause to be more guarded in invoking McCulloch to support views of congressional power now thought necessary.”

Marshall explicitly agreed with a critic of McCulloch “that the insertion of the words necessary and proper in the last part of the 8th section of the 1st article, did not enlarge powers previously given, but were inserted only through abundant caution.” (Emphasis in original.) In Marshall’s understanding, any power necessarily includes its incidents. At the time of the Founding and the Early Republic, the legal definition of ”incidents” was that they are inferior powers, and cannot be equal to or greater than the enumerated power to which they pertain. Regarding incidental powers, wrote Marshall, “Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of the given power.”

In a forthcoming article in Engage (the journal of The Federalist Society’s practice groups), Rob Natelson and I penned a hypothetical opinion on a federal health control law, written entirely in Chief Justice Marshall’s voice. The opinion consists mainly of direct quotes from Marshall. (Rob, who knows the law and legal culture of the Founding Era as well as anyone in the world, is the lead author.)

It would be difficult to make a serious argument that the original meaning of the commerce clause and the necessary & proper clause is broader than Chief Justice Marshall thought them to be. Marshall’s vigorous readings of those clauses were hardly uncontested by other Founders. For example, James Madison criticized the reasoning, although not the result, in McCulloch. (As President, Madison had signed the bill creating the Second Bank of the United States, which he thought to be inconsistent with original meaning, but validated by subsequent practice.)

The current U.S. Supreme Court and the Circuit Courts of Appeal do not always follow original meaning, but to the extent that they do care about it, the PPACA in general and the mandate to purchase congressionally-designed health insurance in particular cannot be considered constitutionally valid under the commerce clause or the necessary & proper clause.

The Federalist Society’s recent Faculty Conference included an interesting panel on Conservative and Libertarian Alternatives to Originalism, ranging from natural law theories to libertarian approaches to Burkean methods. John O. McGinnis moderates, and the speakers include Patrick Brennan, David Bernstein, Brian Fitzpatrick, and myself. It’s a very “meta” discussion, especially in the Q&A.

This Wednesday, I will be giving two talks in Madison, Wisconsin. One, sponsored by the Federalist Society Lawyers Division, will be at a panel on the Obamacare individual mandate litigation. The other two panelists are Wisconsin Attorney General J.B. Van Hollen (Wisconsin recently became one of the 28 states challenging the mandate in court) and Democratic state representative Jon Richards, who will defend the constitutionality of the mandate. It will be held at 11:30 AM. Logistical details available here.

My second talk will be at 6 PM at the University of Wisconsin Law School, in the Lubar Commons, and is sponsored by the Law School student Federalist Society chapter. It will be about Kelo v. City of New London, post-Kelo eminent domain reform, and recent judicial decisions on takings, especially the two big New York Court of Appeals decisions (the Atlantic Yards and Columbia cases).

VC readers are more than welcome to come to either or both events!

This Monday at noon, I will be giving a talk at Duke Law School on the Obamacare individual mandate litigation, which I recently wrote about here. The speech is sponsored by the Duke Federalist Society.

A few weeks ago, I returned to my beloved University of Michigan, for a law school class reunion. This time, I stayed an extra day, in order to speak to law students at a lunchtime event on Monday, organized by the U of M Federalist Society. Michigan Prof. Richard Primus provided some thoughtful commentary on my presentation, and the FedSoc organization was outstanding. Anyway, the extra 36 hours on campus was a great opportunity to walk many miles revisiting the immense Michigan campus, the U of M’s beautiful Arboretum, and Ann Arbor.

The campus visit reminded me of how much of the education I received at the University of Michigan took place outside the Law Quad–even though the quantity and quality of education received inside the Quad were excellent. My start as a journalist during law school was writing theater reviews, and then op-eds for the Michigan Daily.  Unlike some Daily alumni, I’ve never won a Pulitzer Prize, but like all Daily writers, I benefited from the opportunity to work for a solid daily newspaper with a circulation of 18,000.

Other law school friends who got outside the Law Quad also had great experiences. One friend played interscholastic rugby. My 1L roommate found a small church in Ann Arbor, which at the time was holding services in a room at the YMCA. My roommate was a very studious fellow, even by law school standards, but the church drew him towards something more important. After serving as a JAG officer in the Air Force, he became an ordained minister.

Even if the university beyond the law school doesn’t help you discern a vocation or avocation, you’ll still find lots of theater, music, museums (including mini-exhibits in classroom buildings), guest lectures on topics other than law, and so on. Not to mention intramural and spectator sports.

Not every law school enjoys the good fortune of being located on a flagship research university campus with 41,000 students. But if your law school does share a campus with a university, it’s almost certain that there’s something there for you to enjoy. The law school experience can be all-consuming, especially during the first year. If you take the time to explore your university, you’ll give yourself a helpful mental change of pace, and have some fun. And as the Grateful Dead put it in Box of Rain, “Maybe you’ll find direction around some corner where it’s been waiting to meet you.”

C-Span’s archives are truly amazing, and its online library has filled out over time. The site now allows embedding of video, too. So here’s a fascinating video of President Reagan speaking at the Federalist Society’s Lawyer’s Convention in 1988, with Reagan starting at around the 9 minute mark:

The President won’t be speaking at this year’s Federalist Society Lawyer’s Convention, but you can find the list of speakers, including several of my fellow Conspirators, here.