Wednesday, April 05, 2006

Not our finest hour.

A former classmate points me to this postscript from an article based on Larry Kramer's remarks at the 2003 Federalist Society Student Symposium. Your thoughts or comments are solicited. The citation, should you wish to read the piece in its entirety, is Larry Kramer, On Findng (And Losing) Our Origins, 26 Harv. J.L. & Pub. Pol'y 95 (2003).
The text above is a slightly elaborated version of my oral presentation at the conference. While it scarcely reflects anything radical (or even original!), it does take strong exception to the idea that we can or should be trying today to implement an eighteenth-century constitution as it was originally understood. In truth, I do not believe that anyone who is actually familiar with the eighteenth century would say otherwise. Originalism is a political slogan that stands for strong disagreement with a particular subset of modern decisions, not an unqualified commitment to wholesale restoration of the Founders' Constitution.
I doubt, for example, that the same people who want to undo the New Deal are also prepared to give the middle third of the country back to France, though from an originalist perspective the Louisiana Purchase stands on no firmer footing than the NLRB. Likewise, I imagine that the people who insist that Congress has no business enacting conditional spending programs probably are not likewise itching to tell President Bush that he must bring the troops in Afghanistan home right now, that all our executive agreements are void, and that the President must consult with the Senate before beginning talks with foreign leaders. We could, moreover, easily generate a very long list of similar examples, things so extravagantly implausible in the modern world that strict originalist talk begins to look silly.
These arguments are, I think, clear enough from the discussion above. What was striking, and somewhat dismaying, however, was that when I tried to make this point during the question-and-answer period of our panel, I was jeered. Nor was this the first time something like that has happened to me at a Federalist Society event, and I have seen it done to others, too. I confess that, when the laughter began, I grew angry, and I regret making my point by saying that anyone who held strict originalist views was either ignorant or an idiot. That was a product of frustration at being invited to speak to an audience that apparently had no interest in listening.
I was a second-year law student at the University of Chicago when the Federalist Society was founded. While I did not agree with its founders on most issues, I thought they had a point that something like the Federalist Society was needed because liberals had grown smug and stopped listening to arguments from those who disagreed with them. And in its early years, what gave the Society's events energy and legitimacy was its genuine commitment to honest discussion. The first conferences worked because of the Society's willingness, indeed eagerness, to create an environment where liberals and conservatives actually listened to one another. Liberal colleagues would sometimes joke that they had been invited to serve as meat for the audience to chew on, but we went because, in truth, it seemed like a place where ideas were taken seriously. No one expected to change anyone's mind (including their own), but one could still learn from people with different views.
Twenty years on top changes things, I suppose, and somewhere along the way the Federalist Society lost its original sensibility and became what it started out criticizing. The smugness and failure to listen are coming from the other side of the aisle now, and the rest of us, it seems, really are there just to serve as lunch meat. What a pity.
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