Today was a day of the ethos, the logos, and the pathos for me.
Without a doubt, the authority of the panelists today was unquestionable. Sitting in front of me were some of the greatest minds alive today. While I did not agree with much of what they said, the mere presence of people like Jack Balkin and Bruce Ackerman left me awed and, in some cases, stultified.
But with this authority came a sense of incestuousness. The audience consisted of (by my estimation) 90% Yale law students. Except for the Professors speaking at the conference, I saw few other scholars in attendance.
I think of the metaphor, if a tree falls in the forest, does it make a sound? If a bunch of authoritative brilliant academics talk (essentially) to themselves, does it make a difference?
I was really disappointed more people did not attend. If this is as important of an issue as these scholars argue, their presence should have brought out friends and foes alike. But perhaps this is one of the inherent flaws in academia. No one actually reads law review articles. No one actually attends these conferences. In a sense, they preach in a vacuum for their tenured peers. Once in a while, they write an influential law review or amicus or letter to congress that changes the law. But for the most part, their actions, despite their august authority, is inconsequential.
Call me an idealist (as I was called by numerous skeptical Yale law students I chatted with tonight, more on that later), but in my mind, the true calling of the academic is to bring a message of the rule of law to the masses. These esoteric law review articles and sparsely attended conferences are fascinating to attend, but do little.
Think of Publius writing the Federalist. Think of the public recitation of the Declaration of Independence in Philadelphia 1776. Think of the Barons at Runnymede forcing King John to publicly declare the rights of man. The apogee of legal contributions to the civilization is when the people embrace the law as their own.
My perhaps quixotic goal, is to educate my fellow citizens (or persons, apparently there is a big difference in the Constitution in 2020), about life, liberty, and property. I don’t know how to achieve that end, but I think it is an enviable, venerable, and noble calling.
I have already read the Constitution in 2020, and came prepared with a decent understanding of the Progressive arguments.
What I admire the most is the detailed level of logic these brilliant minds bring. Yet, this logic is built on such shaky propositions, that pulling out one card makes the entire house tumble. And time, after time, after time, that one magic card is something the Left seeks to avoid at all costs; the text of the Constitution. They can run, but they can’t hide.
For a conference entitled the Constitution in 2020, there were sparse references to the actual text of the Constitution. And when they did mention the text of the Constitution, they quickly sought to avoid it. A brief illustration may elucidate.
The 14th amendment distinguishes between “persons” and “citizens.”
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The privileges or immunities clause applies to citizens, whereas the due process and equal protection clause apply to all persons. Textually, that much seems clear.
But, several of the panelists who work primarily with immigration law deal primarily with alien clients, who are not citizens. But they don’t like this. They want aliens to receive all of the same benefits of citizenship, even though they lack that legal status.
So rather than stopping at the text of the Constitution, they build an elaborate, and very persuasive syllogism to redefine citizenship. Bruce Ackerman creates a new nomenclature, defined as “engaging in citizenship as practice.” What does this mean? An alien pays taxes, contributes to the community, raises a family, etc. That should give them a sense of constructive citizenship. So rather than defining citizenship in any legal sense, either based on the original meaning of the 14th amendment, or even some common law or statutory basis, the Progressives establish a logical argument to achieve their end goal; giving the substantive rights of citizenship to non-citizens.
It is almost like 1984, where words are redefined to suit the whims of those in charge.
Now, textualists are similarly results driven in many cases. I’d be a fool to deny that. But I think one of the redeeming values of textualism, is that the policy driven determinations are at least (superficially) moored in the text. Not making up new principles like “engaging in citizenship as practice,” but relying citizenship qua citizenship, however it is defined.
This textualist approach provides much more legitimacy in my estimation. Because if Bruce Ackerman, who is brilliant beyond reproach, can make definition A of citizenship today, what stops Jack Balkin from making definition B of citizenship tomorrow, and Harold Koh definition C on Sunday? Nothing. It is an ever progressing cycle. I’m not sure where it leads. But it starts to quickly degenerate, and the rule of law, quickly becomes the rule of (these) men.
Perhaps one of the few redeeming benefits of these conference is the human interaction. I thrive on meeting other people with similar intellectual pursuits, and there were no shortage in the room today. As I mentioned, and in light of the overwhelming results of the poll, I decided to wear a James Madison Federalist Society pin to the Conference. I’m no stranger to expressing myself with flare. Around the election season, I would wear my GOP pin on the Metro in DC. I got tons of dirty looks. Sticks and Stones.
Today I received a lot of glances, but the reaction was not negative in the least. The primary question seemed to be, why is he here? I struck up a conversation with a few students there. One of the students quipped something about “know thine enemy.” That’s half right. I like to know what the opposition is thinking. Going to Mason, I was, for better or worse, insulated in a conservative cacooon. There are no liberal faculty members at Mason, and often the progressive voice is not heard.
But I don’t consider these people my enemy. Not in the least. We are all trying to achieve the same goal. That goal is freedom and liberty. The breakdown occurs when you try to define liberty. If you ask Bruce Ackerman, he would say that an essential element of liberty is some sort of government redistribution of wealth. If you ask me, I would say the redistribution is an infringement of liberty.
But hearing their arguments, and seeing the passion and emotion in their eyes when they discuss these topics makes me feel right at home. We are all passionate. We all feel. We all want freedom. But how we get there. That is the divide.
I will post some more thoughts tomorrow, but this has been a very introspective and retrospective event.