First Amendment Originalism Transcript

Angela Sullivan

February 13, 2026

First Amendment Originalism Transcript

Joel Alicea:
Welcome to the American Enterprise Institute. I’m Joel Alicea. I’m a non-resident fellow here at AEI and a law professor at Catholic University. I’m also the director of the Center for the Constitution and the Catholic Intellectual Tradition at Catholic University, which is a co-sponsor of this event. We go by CIT for short. CIT promotes scholarship that explores the relevance of the Catholic intellectual tradition for American constitutionalism. We do that through events like this one, these types of public facing events, but also fellowship programs, courses. You can learn more about us at cit.catholic.edu.

I’m very grateful to Yuval Levin and to AEI for hosting this event, partnering with us. CIT does a number of events with AEI every year, and they’re always such a gracious and supportive host. So we’re really grateful to them for everything they’ve done to put this event together. My RA, Mikey Schwartz, who has been invaluable as well in this effort.

I’d also like to thank the MacArthur Foundation, which generously provided funding to support this conference. It’s encouraging to see such a prominent and important organization valuing the relevance of scholarship on the original meaning of the free speech clause, and the need to promote and encourage that scholarship.

And that’s why we’re here. This conference is called First Amendment Originalism. It’s about the original meaning of the free speech clause in particular. And, it’s a very timely conference. This conference is coming at the right time because tomorrow, January 30th is the 50th anniversary, the Supreme Court’s decision in Buckley versus Vallejo, which is a foundational case in modern campaign finance jurisprudence.

The court’s more recent campaign finance cases have steadily overruled aspects of Buckley, and the Supreme Court will decide a significant campaign finance case this term, National Republican Senatorial Committee versus Federal Election Commission. At the same time, a majority of the Supreme Court now self-identifies as originalists, that is they believe that the Constitution should be interpreted according to the original meaning of the Constitution.

Free speech doctrine, and campaign finance doctrine in particular, you might say, has a reputation for not being very originalist, for not having much of a connection to the original meaning of the free speech clause, yet the Court has shown an interest in bringing originalist or historical principles to bear in interpreting the free speech clause, especially in recent years. So for example, there was this case called Houston Community College versus Wilson, where the court relied heavily on historical tradition going all the way back to the founding to uphold the power of institutions to censure their own members based on the speech of those members.

So there have been indications that the court would like to move in a more originalist direction, even in the free speech domain. But the question is, how do they do that given that so much of free speech doctrine doesn’t seem to be originalist?

And the campaign finance area, because it is so notoriously not self-consciously originalist, seems to be a particular point of emphasis in thinking about that question. So we have a court that’s interested in deciding free speech cases on originalist grounds, but current doctrine, including campaign finance doctrine, is generally seen as non-originalist.

And to make matters worse, there is a lot of scholarship on the original meaning of the free speech clause, but I’d respectfully suggest that much of it is kind of indeterminate, and a lot of it isn’t very good. There’s some exceptions to that, but it’s just not an area that has been deeply explored by high quality originalist or even non-originalist historical exploration in my view.

Joel Alicea:

So one of the main purposes of this conference is to encourage further scholarly exploration of the historical, the original meaning of the free speech clause.

Joel Alicea:
Both because that’s an inherently worthwhile and important academic endeavor, but also because there does seem to be an interest on the part of the Supreme Court in that kind of work, and it would be good that they had quality scholarship to rely on in thinking through these questions from a historical point of view.

So to help with that effort, in encouraging further exploration of the free speech clause from an originalist point of view, we have two panels today with six truly stellar scholars. I’ll moderate both panels. Unfortunately, Adam White, who is supposed to moderate the second panel, couldn’t make it due to the weather, and so you’re stuck with me for both panels.

I’ll introduce our panelists at the start of each one in the order in which they’re going to speak. This first panel is titled The Original Meaning of the Free Speech Clause, and we have three top-notch scholars. As I said, I’ll briefly introduce each of them. So I’m not going to give you their full bios, which are extensive and full of really impressive things. I’m just going to note a few things about each one.

Each panelist will have 10 to 15 minutes to give their opening remarks, followed by an informal discussion that I’m going to moderate, and then we’ll turn it over to you all for Q&A at the end.

There is… Let me see here. I think I have some notes about how you can submit your questions electronically if you would like to. So if you’re watching virtually, you can submit questions by emailing them to michael.schwartz@aei.org, or by tweeting them on X using the hashtag #originalism. So first amendment, #originalism.

Okay. And so Mikey is going to be monitoring the Twitter handle and he’ll be able to tell me if there are any questions for our panelists when we get to that part of the event. So as I said, I’ll introduce them in the order they’re going to speak.

So Jud Campbell is a professor of law at Stanford Law School. He’s a legal historian and he has authored what in my view are the most important works on the original meaning of the free speech clause. I earlier said some rather disparaging remarks about scholarship in this area. Jud is a notable exception to that, which is why I assign his work when I teach the free speech clause.

Professor Campbell clerked for Judge Diane Sykes on the Seventh Circuit, Judge Jose Cabranos on the Second Circuit. He graduated from Stanford Law School, holds degrees from London School of Economics where he studied as a Marshall scholar and earned his undergraduate degree from UNC Chapel Hill.

Haley Proctor is an associate professor of law at Notre Dame Law School. Her scholarship focuses on constitutional law and federal courts. Before entering academia, Professor Proctor was a partner at the eminent law firm of Cooper and Kirk, where I had the great privilege of being her colleague for a number of years. She clerked for Justice Clarence Thomas on the Supreme Court and for Judge Thomas Griffith on the DC Circuit. Professor Proctor graduated from Yale Law School and Yale College.

Stephen Sachs is the Antonin Scalia professor of law at Harvard Law School. His scholarship focuses on constitutional law, civil procedure, and juris prudence. He clerked for Chief Justice John Roberts on the Supreme Court and for Judge Steven Williams on the DC Circuit. Professor Sax graduated from Yale Law School, holds a degree from Oxford where he studied as a Rhodes Scholar, and earned his undergraduate degree from Harvard College. So Professor Campbell, over to you.

Professor Jud Campbell:
Great. Well, it’s a delight to be here. Thanks so much for having me. Whenever we ask a question about original meaning, we often come to that question with a deep set of assumptions about what it is we’re looking for. So we already know what rights are. We already know what constitutional text is. And for us to figure out the meaning of the speech clause just requires going back to history and finding the evidence that sort of tells us exactly what it is that the government’s allowed to do or not allowed to do.

And, in my view, we actually need to take a step back in two different ways. So one way we need to take a step back is that the founders often thought very differently about rights, about where they came from, about who got to enforce them and so on.

And then the second way that we need to take a step back is with respect to constitutional text. What is the role of a constitutional text? And in particular here, what’s the role of a declaration of rights? What’s the role of the speech clause or other provisions of the Bill of Rights?

So I want to frame my remarks around those two questions, thinking about how the founders thought about rights generally, and then tying that to how they thought about speech and press freedoms. And then also thinking about how they thought about the Bill of Rights generally, and then tying that to how they thought about the speech clause.

So in terms of how they thought about rights generally, the founders don’t assume that all rights that are deemed to be fundamental operate in the same way. They actually have different notions of fundamental rights that animate their thinking. One of the core ideas at the founding is that humans have certain natural rights. These are rights that come from their humanity, their endowments from God, and they’re things that a person would have in a state of nature, even independent of any governmental authority.

Those are things like the ability to think, the ability to sit patiently and listen to a lecture, and the ability to speak, to express oneself. So basic human capacities or natural rights. Those natural rights then, the thinking went, are recognized and preserved in a social compact or a social contract that individuals unanimously agree upon when they enter into a state of political society.

Now, that social contract is fictitious. There’s not actually any original agreement by which people create a state of civil society, but it still has profound implications for how they think about the nature and extent of governmental power. And the two key aspects of their thinking about what it is that the social compact does with respect to retained natural rights, are first that retain natural rights have to be limited only by the people themselves. Because we retain them, we have to be in control of limitations on those rights.

And then secondly, that the limitations on those rights have to be in promotion of the common good or the public good, that we would only surrender a power to control those rights in situations where it benefits us, as people entering into a state of civil society.

So notice here right off the bat, two things that are really different from how we tend to think about rights. These are rights that are not operating as legalistic trump cards. They’re not saying the government can’t do X, Y, and Z. Rather, they’re providing us a basic orientation for why it is that the government ought to exercise power in limiting personal freedom, including freedom of speech.

The other thing that’s really important to recognize here is, because these rights are retained by us, we are the ones who have the ability to control them and delineate exactly when it is that they should be restricted. This is a power that is sometimes called the power to determine rights, the power to specify exactly when it is that, what it is rights should do, when it is that governmental powers should be limited and so on.

So natural rights jurisprudence for them is not operating in the sort of manner that we think of rights as trumps, as constitutional limits on legislative power and so on. Rather, it’s telling us we need a representative government, one in which we control our own rights.

The founders also think though, that there are certain types of rights that actually do have more determinant limiting effect on governmental power. So some of these rights are aspects of natural liberty that we would never give up upon entering into a state of civil society. The most important of these for the founders is the freedom of religious conscience, but they also have the notion that upon entering a state of civil society, it would not be prudent to give up the right to speak in good faith on matters of public concern, that we need that ability to exercise our capacity to criticize government, to have discussions about what sort of public policy measures are valid and so on, in furtherance of this goal of exercising self-determination. So there’s a notion of a more limited right that does provide more determinant boundaries on governmental power.

And then, the last bucket of fundamental rights are rights that have been recognized through customary law to have imposed more determinant limits on governmental power. These are aspects of the common law that are thought to be fundamental in character. And with respect to speech and press freedoms, the most widely recognized of these limits is the rule that the government cannot create a system of prior restraints, that even pursuant to legislative authority that the people generally have to promote their common welfare, the legislature cannot divest authority over speech to an executive official to set up a system where the executive official decides what can or can’t be published. And that’s an aspect of customary law that had emerged in Britain in the late 17th century, and that Americans in the 18th century widely recognized as being part of their freedom of the press.

So you have these different dimensions of fundamental rights jurisprudence, some of which operate as legally determinant limits on legislative power, but otherwise fundamental rights jurisprudence is largely about justifying self-governance, and not about putting determinant limits up on what it is that the legislature can and can’t do.

So let’s then turn to the First Amendment. And here I want to think a little more broadly about what it is that the Bill of Rights as a whole is doing. I talked before about how you have social contractarian limits on governmental power, and you have customary fundamental law limits on governmental power. I’ll add a third here, which is that at the founding, it was possible to use constitutional text to further specify limits on governmental power. So you could use the text of a constitutional provision to add additional constraints on governmental power that weren’t supplied by customary law, or weren’t supplied by these fundamental principles of social contract theory.

And a good example of this is in Article 6 of the original Constitution, we have a clause saying the government can’t create religious test oaths. So this is a new provision of fundamental law created by text. And there’s some people at the founding who think we should be doing this in the amendment process. We should be adding new restraints over and above what the original constitution imposes to further limit legislative power.

For the most part though, the federalists resist that effort. They think we shouldn’t be changing the terms of the original Constitution. And so, the Federalists, I argue in a recent paper, take a different approach, which is an alternative way of creating a rights provision that is called declaratory. It is an affirmation. It’s using the text as an affirmation of the existence of rights we already have. It doesn’t further specify those rights. It doesn’t add new limitations on those rights. All it does is it reaffirms the existence of certain rights that we already think are fundamental.

And in my view, that’s what the First Amendment does, at least in the speech and press clauses. The establishment clause may actually be a little trickier here. But the speech and press clauses, notice how thin they are. They don’t receive any debate in the first Congress, and all they’re doing is saying, “We have these rights and Congress can’t abridge them.” So what does that then mean? Well, it means that there are, pursuant to the speech and press clauses, certain limitations on legislative authority that we can recognize pursuant to customary fundamental law, the rule against prior restraints, certain limits that we can recognize as being embedded in the social contract itself, the conventional understanding of the speech clause that the founding recognized people’s right to speak in good faith on matters of public concern.

But beyond that, the speech and press clauses, in my view, do not fully specify the ways that legislatures can act outside of those two principles. So there’s a wide space for the people themselves acting through their representatives to make decisions, to make determinations about what exactly this freedom of speech as a natural right entails.

And so, I think we make a mistake if we come to the speech and press clauses and sort of assume, well, they must fully specify everything that the government can and can’t do with respect to limitations of expression. In my view, the First Amendment is not designed to do that. And if we’re trying to approach it from a historical standpoint as moderate interpreters, we’re asking too much of the clause if we make that assumption at the outset. Thanks.

Joel Alicea:
Professor Proctor.

Professor Haley Proctor:
All right. Thank you very much. Thank you to AEI and CIT for this opportunity to talk about such an important issue. So one thing I think we can all agree on, is that the federal judiciary has long neglected the original meaning of the free speech clause. And, the Supreme Court’s recent decision concerning the right to bear arms in New York State Rifle and Pistol Association v. Bruen gives us reason to hope that it is never too late for the courts to revisit their approach to our fundamental rights. And maybe that decision also lights a path to returning to the original meaning of the free speech clause.

And that I suppose is my main qualification to be on this panel. I come to the First Amendment by way of its neighbor, the Second Amendment, which I litigated with Professor Alicea when we were in practice together.

And I’ve done a lot of thinking about Bruen’s approach to ascertaining the original meaning of the Constitution. But I’m not going to begin with Bruen. I’m not even going to begin with rights. I’m going to begin with power, because I think that there is a good argument that the original meaning of the free speech clause is simply that Congress does not have the power to regulate speech. Put differently, the clause does not declare a right or require Congress to respect a right. It denies Congress power to prohibit, compel, or regulate speech, full stop.

So in the time that I have, I’m going to do four things. First, I’m going to situate this interpretation of the free speech clause in the framework that Professor Campbell has just laid out.

Second, I’m going to explain why I think this makes the most sense of the text of the free speech clause, especially when you consider it as in comparison to the Second Amendment.

Third, I will briefly address the history surrounding the drafting and ratification of the Bill of Rights.

And then finally, I will close by reflecting on what all of this means for Bruenizing the free speech clause.

Okay. So let me begin with what I take to be Professor Campbell’s central negative claims in his work on rights, because I don’t dispute them as applied to the free speech clause. One is that the free speech clause does not settle any unsettled questions about the contours of free speech rights. And the second, and he didn’t talk about this as much today, but the second is that it does not delegate power to judges to determine the content of the free speech right, and I agree with that.

Now, in accepting these premises, I don’t want to be understood to say that I think that the concept of the freedom of speech is substantially under determinate. In fact, like Professor Campbell, I believe that the phrase referred to a body of preexisting settled rules and principles, although he and I may disagree about the content and the contours of that body of law.

The question on the table is, to the extent that the freedom of speech needed to be determined, who determines? And my reading of the free speech clause is not that the text itself determined to the content of the freedom of speech, and it is not that the amendment transferred the power of determining its content from the political process to the judiciary. My reading is that it left the power of determining the content of speech where it was before the Constitution was ratified. That is, with the people, and to the extent that they had delegated their power to the states with the state governments, but it denied Congress any share of that authority.

To use Professor Campbell’s terms, the free speech clause is properly understood, neither declaratory nor specificatory of the right. It does not operate on the right at all. It operates on Congress’s power.

Now, we know that the First Amendment acts on Congress’s power, because that is what the text says. “Congress shall make no law.” This forthright denial of power stands in contrast to the Second Amendment, which speaks in a passive voice. The right of the people to keep and bear arms shall not be infringed. The Second Amendment limits Congress’s powers indirectly by codifying a right that Congress must respect. The First Amendment, by contrast, protects a right by limiting Congress’s power to act on it. If natural rights theorists are correct that a political body can respect a right while also regulating it for the public good, then these operations are not necessarily the same thing.

Maybe the framers did believe that some rights were subject to regulation for the public good, but it does not follow that they wanted to give that regulatory power to Congress with respect to speech.

Now, Professor Campbell has rightly pointed out that a provision, this is a quote, “A provision that Congress shall make no law past some threshold does not suggest a lack of regulatory power leading up to that threshold.” So we do need to look at the threshold that the First Amendment sets, which is abridgement. Here, the Second Amendment is also informative. That amendment does not say the right of the people to keep and bear arms shall not be abridged. It uses a different verb, “infringe.” As my Notre Dame colleague, Professor Daniel Slate has pointed out, based on 18th century usage, these two words had very different… Sorry, related but different meanings. When its object was a right, abridge meant a lessening of that right, including through regulation.

Infringe, by contrast, meant to abridge unjustly or in an illegitimate way. So the Second Amendment contemplates some regulation of keeping and bearing arms at the federal level, and that is why Bruen’s framework permits the government to come forward with a historical regulatory tradition to justify its regulation.

The historical regulatory tradition may show that the abridgement created by the regulation is not illegitimate and thus not an infringement, which is what the Second Amendment prohibits. By contrast, the First Amendment seems to deny Congress all abridgements, even otherwise legitimate ones. These textual differences strike me as significant, and the text, rather than any subjective expectation of a historical actor, is the source of our law.

But to the extent that we care whether the framers believed they were doing different things by using different words in the First and Second Amendments, Professor Alicea has shown that the framers of the Bill of Rights took great care in fashioning the text with an eye toward the implication of their words, both for the scope of the rights and the extent of Congress’s power.

So I’m going to turn now to that drafting history. During the ratification debates, one of the most significant objections to the Constitution was that it lacked a bill of rights. Defenders of the Constitution thought a Bill of Rights was unnecessary, would be ineffective, and might be dangerous. Unnecessary because Congress’s limited powers posed little threat to the liberties that weren’t already secured by the Constitution. Ineffective because the Bill of Rights would not neutralize any threat that Congress posed. In either event, the people’s security would depend, in Publius’s words, would depend on public opinion and on the general spirit of the people and the government. And dangerous, because an enumeration of rights might truncate those rights and might imply that power… I’m sorry, imply that Congress had more power to regulate rights like speech than it actually had.

But the people believed that Article 1 gave Congress powers that it could use to reach speech and they wanted assurances that their rights were secure.

There were at least two ways to respond to these concerns. The Bill of Rights could require Congress to respect the freedom of speech and exercising its powers, or it could declare that Congress lacked authority to exorcize those powers with respect to speech at all. Now, those were both plausible solutions and I make no claim that the men who debated and ratified the First Amendment were of one mind on which was the right one.

Some early congressional drafts of the free speech clause resemble the Second Amendment. They describe a right and prohibit its infringement, but the text that ultimately emerged took a different form. The Senate revised the clause to focus not on the right, but on Congress’s power, and to prohibit abridgements rather than infringements. And we do not know why the Senate made these revisions because they debated the amendments behind closed doors. But we know the dangers that hung over Federal Hall in 1789, the danger of unduly restricting rights, the danger of implying too much power in Congress, the danger of creeping encroachments.

Framing the amendment as a categorical denial of legislative power erected a margin of safety around the right, and it did so without specifying its content or implying anything about the scope of Congress’s powers. Just a decade later, James Madison would read the First Amendment in precisely these terms. Describing Virginia’s reasons for denouncing the Sedition Act of 1798, Madison insisted that the First Amendment contained a categorical denial of federal power. He was speaking about the freedom of the press, but the logic of his argument extends to speech as well.

Now, Professor Campbell has argued that the rise of partisan politics in the 1790s gave the Jeffersonian Republicans new reasons to endorse this no-power reading of the First Amendment. And I do not deny that the stories that Madison and Jefferson told about the First Amendment had the virtue of political expediency. I just think that they may also have had the virtue of candor.

At a minimum, there is substantial continuity between the James Madison who introduced the Bill of Rights in 1789 and the James Madison who opposed the Sedition Act in 1798. So what does all of this mean for Bruen’s applicability to the free speech clause? For those who are unfamiliar with that decision, Bruen rejected the tiers of scrutiny and directed courts to adjudicate Second Amendment challenges in two steps.

First, consider whether the challenger’s conduct falls within the plain text of the Second Amendment. In other words, is it keeping and bearing arms? Second, if so, the burden shifts to the government to come forward with the historical tradition of firearm regulation to support the regulation… Rather to show that its regulation is consistent with that tradition.

If the First Amendment prohibits Congress from regulating speech, we do not need Bruen’s second step. All we need to know is that someone is exercising his right to speak as it was understood at the founding. If so, Congress cannot reach his conduct even to regulate it for the public good.

The analysis is different for states. The 14th Amendment now secures the freedom of speech against state governments, but that does not mean that states shall make no law abridging the freedom of speech. Instead, states may not regulate speech in a way that is contrary to the historically determined contours of the right. For that reason, Bruen is a good guide to adjudicating First Amendment challenges against the states. And critically, this act of translation does not depend on modern judicial assessments of government interest or public good.

I’ll close by acknowledging two ways in which, despite everything I’ve just said, Congress may actually be able to act on speech. And I don’t have time to develop these and candidly, I don’t know the right answers, but I want to acknowledge them and I’m happy to explore them more in Q&A.

First, Congress exercises limited enumerated powers with respect to the people of the several states, and the First Amendment declares that those powers do not include the power to regulate their natural right to speak. But, Congress exercises powers of local government in federal territories and enclaves in the district in which we’re now sitting. I do not think that the First Amendment speaks to these powers. I’m not saying Congress may infringe speech rights in those places, only that Congress enjoys whatever regulatory powers are consistent with-

Only that Congress enjoys whatever regulatory powers are consistent with the fundamental rights.

Second, subsequent amendments may have granted Congress powers that it could use to reach speech. So for example, in addition to protecting the freedom of speech against the states, the 14th Amendment gives Congress powers to enforce speech rights by appropriate legislation. At a minimum, this provision allows Congress to pass laws concerning the freedom of speech. Whether it allows Congress to incidentally bridge speech in service of protecting speech rights, I do not know. But whatever powers Section Five grants, Congress presumably override the First Amendment’s original limits. Thank you.

Joel Alicea:
Thank you, Professor Proctor. Professor Sachs.

Professor Sachs:
Thank you all for joining us. Thank you to Professor Alicea for having me and to the other members of the panel. I should say my experience is primarily on the originalism side and less so on the First Amendment side. So in my talk, I’m going to largely take as given Professor Campbell’s account. I’m going to sort of assume that he’s got the history right. I have some interest there because together with our friend Will Baude at Chicago, we wrote an article that sort of assumes that his argument is right and advances it. So I think it is right, but I’m just going to take it on faith here.

And I want to suggest some potential applications of this to ongoing First Amendment disagreements. A lot of originalist work in the First Amendment tends to, as in the Martin Luther example, either fall off the horse one way or the other. Either it says that the First Amendment is a paper tiger and doesn’t really do anything and it lets Congress do whatever it wants, there’s no prior restraints. Or alternatively, it reads the First Amendment as extraordinarily significant and as in hard coding a very strict sort of libertarian code of speech rights.

And Professor Campbell’s account sort of is neither of these things. To use some language that he’s used before, but also that Professor Richard Ray has used, rather than being narrow, unperforated and strong, merely applying in a very few set of cases, but applying with very few exceptions to those cases and applying very significantly to them. Instead, the rights he’s describing are broader, more easily perforated, more easily overcome, and somewhat weaker. So once you know that something is covered by the speech right that may not end the inquiry, we might need to know a little bit more.

The reason, of course, is because these are grounded in natural rights. National rights are very expansive, cover all sorts of things, and yet are also regulable. The government can regulate those rights using the police power for the public good, for various interests, health, safety, welfare, morals, et cetera, but it cannot abridge or cancel those rights.

And the assessment of, is this being done in pursuit of the public good or not is generally for the legislature and only in certain cases for the judges. Whether it’s sort of a laugh test or whether it’s something a little bit stronger than that, I think is not immediately clear from the history, but one could think of it as rational basis with bite. Think, for example, of the slaughterhouse dissent where the justices there said, sure the state says that this is a health regulation, and yeah, the part that says that the butchers have to be downstream, yeah, that makes sense in terms of health, but the part where the butchers have to all belong to the same corporation, that’s not about health. We just don’t believe you that that’s a health restriction. We think that’s actually a monopoly. We think that the judges are capable of making those kinds of distinctions and looking past the sort of purported legislative justification to say, “Actually, this is something else.”

And likewise, you know what’s going on between Peckham and Harlan and Lochner. So everyone agrees that an eight-hour day for mine workers obviously promotes safety, there’s a real problem if everyone’s exhausted in a mine, but bakers, how dangerous is that? It’s not more dangerous than clerks or junior associates or any of a number of people who might be up all night and have to do a lot of work. And so can we look past the purported legislative justification and say, “This really isn’t about health, safety, welfare morals. This is really about big bakeries and small bakeries and getting involved in protecting some interests in the market over others.”

And so it may well be that in First Amendment free speech cases too, the judges are going to be in a position of saying, even as to things that are outside the fundamental positive rights that are sort of hard coded like the Free Press Clause, and even outside the inalienable natural rights, like the good faith expressions of opinion, speaking, writing, publishing, and so on, there might be aspects of free speech that are merely retained natural rights, but where judges would have some wiggle room to say, “Something is wrong with the purported legislative justification here. You can’t restrict speech like that for that reason.”

So where would we find this? And I want to discuss this in the context of two examples. One is advocacy of legal activity and one is campaign finance reform. And I think on the former that the original doctrine might be somewhat more permissive than what the Supreme Court has come up with in cases like Brandenburg. And in the latter, the original doctrine might actually support some of the things that the court has done in cases like Citizens United.

So let’s start with the first topic. So one of the sort of core mission statements of modern First Amendment jurisprudence is the Holmes dissent in Abrams, the idea that time has upset many fighting faiths, that ultimate good is better reached by free trade and ideas. And that is why he argues that it’s insupportable the government’s argument that the First Amendment left the common law as to seditious libel in force says there’s no way that’s true and we cannot allow the government to restrict expressions of opinion in these leaflets that are really just about support for the war and not really about imminent lawless action of the kind that would be an issue in Brandenburg.

On Professor Campbell’s picture, there’s more to be said for the law of seditious libel. Perhaps not the Blackstonian categorization. It seems that there’s a lot of good evidence that the founders in America thought that truth was a defense. The Sedition Act itself required that the statements not just be false, but also malicious, had to be done with intent. And that seems to take it outside the sphere of the inalienable sphere of good faith expressions of opinion. If you know you’re lying about your political opponents to make the government look bad, that might be outside the inalienable protection, might be something government could regulate.

And so then the question is, well, why is it regulating that stuff? And so you get to the things that the majorities in the cases from which Holmes is dissenting are talking about. Things like in Debs, is this expression of a general and conscientious belief or is this something with the natural and intended effect to promote illegal activity? “Are these the substantive evils,” as Holmes puts it in Schenck, that Congress has a right to prevent. This is basically asking the police power question, is this within the sort of hardcore of inalienable rights or is this in the sort of broader penumbral area where we want to know why does Congress care? What are they trying to do here?

And Holmes Abrams descent says, “Look, these are puny anonymities. They’re putting these leaflets. No one cares. The only reason for Congress to get involved is because they’re trying to shut people up about the war.” Whereas the majority says, “No, no, no, this is solicitation.” If you try to ineffectually persuade your friend to assassinate the president, we put you in jail. If you try and ineffectually persuade a million people to assassinate the president, according to Brandenburg, you’re free. Your conduct is constitutionally protected because there’s no risk of imminent lawless action. And the majority in a case like Abrams would say there’s no reason to differentiate between these two.

The question is, what were you trying to do here? Were you trying to ferment illegal activity? If we could prohibit the person who actually engages in the illegal activity, we can stop you. And so long as what Congress is going after, what the legislature’s going after is something it has a right to prevent, has a good police power reason to regulate, it’s not just about the good faith expression of opinion, it’s about stopping the illegal activity, then maybe we’ll give it a little more wiggle room, or at least we, the judges, can’t be the ones to say, “No, they’ve got to stop.”

To be clear, this is not my preferred policy. I worry a lot about cases like the Susan B. Anthony List v. Driehaus case where they prohibited false election speech. And so you can imagine during an election a jury is asked, “Did the political candidate intend to lie?” And obviously you can imagine ways that that would go sideways, but it might be that that’s the sort of decision the First Amendment does not stop a legislature from making or at least a lot more work would need to be done to figure out what exactly is it that prevents a legislature from restricting something that at least as the jury found it is not the good faith expression of opinion.

On the other hand, you have areas where the legislature might be somewhat more tied up. So let’s look at Citizens United, which was a case about for profit corporations engaging in independent expenditures critical of a political candidate or alternatively and in some of the subsequent cases contributing to other entities that engaged in such independent expenditures. One of the theories for why this might be a First Amendment issue is just that money talks, that contributions are a form of speech. And I think that Professor Campbell and some of his other work is correct to say that that’s a hard argument to make, that it’s a form of expressive conduct surely, just like burning your draft guard, but the government regulates burning your draft card all the time. And so the fact that I choose to communicate via contribution wouldn’t get me out of a bribery conviction, and so it might not get me out of a regulation like this one.

Another theory for First Amendment protection here is that the First Amendment doesn’t allow discrimination based on the identity of the speaker. This is something that Justice Scalia emphasized in his concurrence, but the thing is that a natural rights picture of the First Amendment would note that natural rights are for natural persons. General corporation laws or an invention of the modern era, corporations lack the privileges and immunities of citizens under Article 4 and the 14th Amendment. There were no general corporation laws at the founding. And as Vince Buccola at Wharton has emphasized, corporations are creatures of law. They have the powers the legislature gives them.

And so if we wanted to create corporations to say, “Well, you guys can’t engage in political speech of this kind,” why couldn’t we? If we create a corporation whose sole power is to build a bridge, something like that, and they take the money and spend it on political speech, we’d say, “Hey, that’s ultra vires. That’s beyond your charter. That’s not something that we allow you to do.”

So this is not about the sort of standard natural rights picture, but it may be about the police power question because once we allow, once we do have general corporation laws, once we do allow people to form corporations under Delaware law to promote or conduct any lawful business or purpose, once we say, “Hey, it’s open season, form a corporation, do whatever you want.” Now we might need to explain as a police power matter why we’re cutting back when the thing that you’re taking out ads to do is not selling soap, but to criticize a tax on soap or to criticize a candidate who favors attacks on soap. And if natural persons are exercising speech rights together via the corporate form, we might say, “What’s the regulatory interest here in preventing them from doing that in a case where it’s a for-profit corporation as opposed to someone else?”

So Professor Campbell gives the example, there’s no natural right to use the public subway, but if we said, “No using a public subway to go to a protest,” we’re like, “Well, why is the government doing that?” It seems like that’s just trying to stop you from being at protests and there’s no health, safety, welfare, morals, justification. It’s not about subway traffic, there’s no reason why going to the beach on a nice day is any worse for the subway or any better for the subway than going to a protest. So what is the government interest and do we believe you that this is about regulating traffic on the subway and not just about stopping protests?

Professor Sachs:

So you could call this First Amendment Lochnerism, but the good kind, the kind that’s actually saying we need to be sure that the government isn’t pretending, giving a pretextual justification when in fact what it’s doing is trying to squelch speech by natural persons.

Professor Sachs:
And so that’s why it might matter a lot what the interests are that are advanced on the other side.

So in Citizens United, there was a lot of discussion of the anti-distortion interest in Austin. Corporations promote unpopular speech. Not a lot of people agree with them and the government allegedly has an interest in preventing the marketplace of ideas from being distorted in this way. But the reason the government didn’t even advance that argument in Citizen United is that there’s plainly no interest, no legitimate interest in making sure that all speech is popular or in making sure that the amount of speech that is seen correlates with its support in the populace overall. There’s no government interest in preventing the public from changing its mind.

Another theory was that of shareholder protection, the ultra vires claim. They’re taking money from shareholders and using it for causes shareholders might not want. But there too, it’s hard to say that that’s really what’s going on because the complaint was not, oil company executives are taking money from oil company shareholders and using it in ways contrary to their interests [inaudible 00:46:16] oil company shareholders. It’s that they’re too good at representing their shareholders, that they’re trying to do things that will get oil companies more money, which is presumably what shareholders, so long as their shareholders want. So it’s unclear to me that the shareholder protection argument really can fly.

And the key arguments were really about corruption and about the appearance of corruption. Appearance of corruption, I am somewhat skeptical of. If lots of people thought that Jews control the media, that wouldn’t create a government interest in restricting the First Amendment by regulating who can get a job in a newspaper. We would just say, “Look, lots of people think this. There’s the appearance to some of some …” But we wouldn’t say that the government can regulate on that basis. We would only say that the government can regulate actual corruption, not just fake corruption people mistakenly believe exists.

And so when it comes to actual corruption, the question we then have is, is there more corruption involved when a for-profit corporation engages in an independent expenditure as opposed to when a wealthy individual engages in an independent expenditure or indeed a nonprofit, some farm cooperative lobbying about soybeans or something. Is that something where there is less corrupting effect on the body politic? And while it’s true that legislature can make choices and need not get every instance of the problem, some of the evidence of pretext is that it’s regulating in a very weird way if what we were actually concerned about was the use of money to sway ultimate public policy.

So to my mind, it’s really the corruption interest has to, in some sense, be a stand in for the anti-distortion interest because if you didn’t think that distortion was a problem, it’s not clear why the for-profit corporation part of the inquiry would do a lot more work than the other kinds of ways. When the AARP lobbies, is that not corruption? When teacher’s unions lobby, is that not corruption? I mean, it seems like there’s lots of ways for the body politic to become corrupted and to care most about this corner really depends on the anti-distortion interest really doing the work.

So I don’t see that as a knockdown argument for the legitimacy Citizen United on a natural rights, retained rights framework, but I think that there are more legs to the argument than it might otherwise seem. And it strikes me that this is the field on which debates about campaign finance reform and other government speech restrictions need to be fought. Thanks so much for your time.

Joel Alicea:
Thank you, Professor Sachs. So I’m going to give all of you a chance to say anything you want in response to either panelists. Before I do that, I wanted to just add two points for clarification, since we have a lot of people here who are not in the weeds of First Amendment scholarship. One point is I start out by saying there’s a lot written about the free speech clause and the original meaning and some of it’s not great or whatever. And you might be wondering, well, what does that body of scholarship say and why do you think it’s not very good? So just one example is something that Professor Sacks pointed out, which is that a lot of current scholarship, especially older free speech scholarship, took for granted that the free speech clause was just about no prior restraints, which is to say that the government cannot prevent you from speaking, but then on the back end could potentially do something about your speech.

And I think that Professor Campbell’s scholarship makes very clear that that’s not the only thing, that the freedom of speech as a principal, at least as a right, was about. That that might be something that is at the core of the Free Press Clause, but not really the entirety of the free speech right. And I think he does that pretty conclusively, which suggests that there might be a lot more to explore about the free speech clause if it’s not just about prior restraints. So that’s an example of what I had in mind in opening the panel.

Joel Alicea:

But the second thing I would say is that as Professor Campbell said at the beginning of his remarks, his way of thinking about rights challenges a lot of our preconceptions about rights today.

Joel Alicea:
And in fact, the way that a lot of areas of jurisprudence at the Supreme Court think about rights today, including Bruen, this Second Amendment case that Professor Proctor mentioned.

And so when he laid out his view of rights at the founding and how he thought that they worked, some of you might have been challenged by that and thinking, “Well, that doesn’t sound like the way I think about rights. I tend to think about rights more as when the government does something that tramples on this right, that’s it. The government can’t do that. It’s just kind of like a bar, a barrier to what the government can do.” I take a backseat to no one in my admiration for Professor Campbell’s scholarship, but I just want to mention that because everyone here is accepting Professor Campbell’s account, that doesn’t mean that it’s not a contested account of rights at the founding. There are some scholars who would take the view that is more what you probably have in mind as the way rights work in modern jurisprudence.

Joel Alicea:

This is a topic of ongoing debate right now among scholars, especially originalists and legal historians in general about the concept of rights at the founding.

Joel Alicea:
So I just didn’t want the fact that all of us are kind of assuming for the sake of this argument that Professor Campbell is right, and he might very well be right, that that meant that you got the impression that was a settled question in the scholarship right now. It’s very much a live question, mostly prompted by Professor Campbell’s work that has really sparked the conversation. Comments on your fellow panelists remarks. If not, I’m happy to just go into questions, but if you have anything you want to say.

Professor Jud Campbell:
Yeah, so I’ll start off just by saying Joel is being quite modest there. His work is, especially a paper called, what is it? Bruen and the Founding-Era Conception of Rights, is really taking the lead in trying to assert that what the Bill of Rights is up to is specifying or at least recognizing specific limits on governmental power. So to sort of translate that into what I said, Joel thinks, Professor Alicea thinks that there are, in the Bill of Rights, limits that operate as legally determinant specifications like the customary common law limits that I was talking about or the inalienable natural rights I was talking about, and that retained natural rights are just relegated to the Ninth Amendment, if anywhere. And I actually think that’s a plausible view. And then the question is, well, what do we do with the Ninth Amendment? So it doesn’t really answer the question of how to think about retained natural rights in general, but it does at least reorient what we think about the First Amendment in particular.

I just want to say a couple of things about each of their remarks, which were wonderful. So with respect to Professor Proctor, I do want to say that there are people at the founding, and this is true in the 1860s also who used the word abridge in this more capacious way to mean any limitation. So you actually do see a couple of people make this point in the ratification debates that take place in state legislatures in the late 1780s with respect to what are we doing in the First Amendment. They make it as an objection like, “Well, we can’t do this because that would deprive Congress of any and all power.”

And the Republicans similarly make that as an objection in the 1860s like, “What are we doing here guys? We can’t deprive the state governments of all power.” Of course, that’s an argument that then gets picked up by John Campbell, of no relation, thank God. And the argument in the slaughterhouse cases, he thinks that the privileges or immunities clause, which by the way, says no state shall make or abridge, it’s replicating the structure of the First Amendment, therefore deprives the states of the ability to regulate, retain natural rights.

So that argument is on the table, I don’t think it’s right though. So why don’t I think it’s right? Well, just two pieces of evidence, obviously this is a much more extensive debate, but two pieces of evidence. So one, the first Congress, when they initially proposed the speech and press clauses, the House actually passes a parallel provision that operates against states. So what are they up to here? One answer is they’re thinking about what they’re doing in terms of a categorical denial of power. Well, if that’s really what they’re up to, then they would’ve disabled states from banning perjury, banning fraud, like any number of things that restrict speech.

So to my mind, what that tells us is at least members of the House are thinking about the speech and press clauses against the federal government as being parallel to the sort of restrictions that they expect to operate at the state level. Now, it’s true that the Senate then gets rid of the provision that operates against the House. The Senate also, as Professor Proctor is restructuring the amendment, so it says Congress shall pass no law. So what’s going on there? I don’t know for sure because we don’t have the records from the Senate, but I will offer one piece of evidence, which is the House’s provision with respect to the Establishment Clause was initially framed in the passive voice. And it was objected to because people thought, “Well, if we just have a rule against establishments, that’s going to potentially at least operate against state level establishments and potentially even against contractual provisions that relate to church administration, like bringing a lawsuit for the recovery of damages for not paying a minister,” or something like that.

And so the response in the House is to say, “Well, okay, we can rephrase the establishment clause by saying, “Congress shall pass no law respecting an establishment of religion.” So that’s just an answer to the Establishment Clause problem. In the Senate, then what happens is they merge the establishment clause free exercise clause, speech and press clauses. And so to my mind, that merger is just about simplifying the language and the structure, which is the overall thrust of what the first Congress did with respect to the drafting. They just kind of cut the language down to the bare minimum over and over again. This is the structure of the first Congress drafting debates.

And so to my mind, the sort of upshot of this is they’re not changing what they were trying to do, it’s still the same impact in terms of what the power of Congress would be, but now it’s written in a way that is more clearly delineating, this is only operating against Congress, we’ve taken out the implication that we used to have in the first draft of the establishment clause. Oh, by the way, we’ve now also taken out the provision that would operate against states and so we’re clearly specifying this is about the federal government’s inability to restrict speech and press freedoms in ways that abridge those rights. So I think that’s what they’re up to. I don’t think that’s a knockdown argument, but to my mind, it sort of points in the direction of this is a declaratory provision rather than one that’s trying to take away power.

The thing I’ll mention about Professor Sachs’ comments is I think it’s right to say that a lot of the action, if you’re trying to use the historical understanding today, a lot of the action is going to be in that residual bucket of retained natural rights. And there, the crucial question is going to be who gets to decide. If we have to make these hard choices about what exactly is or isn’t going to promote the public good, whose responsibility is that? And here I don’t want to say that the judges have no responsibility. It could be, in especially clear cases, that judges have the ability to come in and say, “Well, the legislature has manifestly exercised power that it doesn’t have. “ That’s the view that Justice Chase has in the Calder v. Bull case. It’s the view the Lochner era judges have, it’s the view by the way that the Republican members of Congress have in the 1860s when they’re proposing and ratifying the 14th Amendment.

But notice that that authority is secondary to the primary authority that the legislature has to determine rights.

Professor Jud Campbell:

And I think it’s especially important to recognize that that democratic authority in legislatures is internal to how the founders thought about what the rights were, which is rights that we hold and that we ourselves have the capacity to determine. So remember that the idea of natural rights is not just about limiting governmental power, it’s about having self-determination, about we ourselves controlling our own rights. And I really worry that we take that away if we just grant that sort of authority to judges to make these sorts of decisions.

Professor Jud Campbell:
So you have to be really careful when you’re exercising that type of power, in my view, if you’re trying to stay faithful to the founders, to do it only in extreme cases where it’s clear that legislatures have acted beyond the scope of their authority. Thanks.

Joel Alicea:
Professor Proctor.

Professor Haley Proctor:
So I’ll react quickly to the three really good points that Professor Campbell makes about the textual provisions that I’m really focusing on. So the first is this issue of the verbs, abridge versus infringe. And I agree that people are of different minds about what the significance of these verbs are. There’s a back and forth between John Marshall and James Madison over the Sedition Act about the significance of the different verbs.

Nevertheless, in the 18th century, abridge was widely used to describe even regulations that were permissible, regulations for the public goods. So you would see people saying that, “Well, my rights can’t be abridged except by law in which I participate in creating.” And so at least there are uses of abridge that make this distinction between abridge and infringe significant.

The second point is the fact that initially the amendments to the constitution would also have restricted state’s ability to infringe the freedom of speech, and so that suggests some sort of parody in the thinking of the framers as to what they were doing with respect to state power versus federal power. And of course, we can say Congress has no power to regulate speech for the public good, it would be far more radical to say that states have no authority to regulate speech at all for the public good.

So I think at the time that Madison’s amendment was still viable, what became the First Amendment still took this Second Amendment like form. It said, the freedom of speech shall not be infringed. And so I think at that time, it is absolutely true that the solution that the House was working.

It is absolutely true that the solution that the House was working toward was we will have equivalent limitations on congressional power and on state power. But then it goes to the Senate and the Senate revises it. Professor Campbell has offered one account for why the Senate would have revised the amendment to take the act of forum, so Congress shall make no law. And I agree that certainly there were concerns that without using Congress as a subject of the sentence this amendment would suggest that the states were not able to establish religion. And I agree that that’s why the religion clauses appear to have been rewritten.

But the free speech clause was revised to the Congress shall make no law form even before the Senate decided to merge the two amendments together. So, it’s possible they were working their way towards this linguistic simplicity, but it also suggests to me that the Senate was contemplating a stricter limit that they would then need to restrict to Congress, so that they wouldn’t suggest that states lacked any regulatory power. And I think those are the three.

Joel Alicea:
Professor Sachs?

Professor Sachs:
Thanks. So, a few thoughts. I would certainly agree with Professor Campbell that, with regard to the residual bucket, legislatures are in the driver’s seat and they’re there for a reason. And a lot of the fights about sort of legislature versus judges, some of it is just where you are on the spectrum of how trusting you are of claims of legislative authority, and sort of what’s the relative downsides, and do we really think that this can be trusted. There are also sort of more categorical distinctions. So, I think it’s fair to say that the folks in the sort of slaughterhouse dissent camp would have, and even the majority when it was an area that they saw as plainly controlled by congressional text, would have said, look, there’s certain categorical judgments that we can make. Taking property from A to give it to B is just not going to fly. We’re just not going to believe the legislature when they say, “This is for good purposes”.

Or alternatively, if the goal is in order to take property today to give it to B, because we think that’s better, that would be a clearly invalid aim on behalf of the legislature. So, there might be things that are like that. There might be things where the anti-distortion interest, for example, you might say like, look, trying to level the playing field in the marketplace of ideas is just not a valid congressional interest, or legislative interest, even though we recognize a very wide swath of interests that are valid, and we’re willing to give the legislature a lot of leeway. Or alternatively to recognize that they have the primary judgment. And our task is merely to say whether they have gone beyond their powers, that theirs is the first move.

The second thing I want to note, and I think that this may help explicate the differences between this model of rights and some other prevailing models of rights, is I think that in a lot of cases, the folks who, the self-described originalists on the court, have often looked at constitutional rights as in the fundamental positive law category. So, I think that some of the disagreements about Bruin might qualify as this. Some of the disagreements about the First Amendment, things like US v. Stevens might qualify as this. So, if you think of the First Amendment as codifying a common law right, then it’s natural to say like, “Well, what were the exceptions back then?” That’s what we want to know, because common law rights have weird shapes. Sometimes they leave stuff out. It’s just some weird historical object that crawls out of the woodwork, and we got to figure out, “Okay, what do we do with this?”

And so if they said, “Hey, that historical right, leave it alone, don’t touch it, don’t infringe it,” then it seems more plausible to say, “Okay, our job now is to figure out whether states restricted carrying a gun on a horse and what inference we could make from that.” And so those kinds of decisions would be very natural, because we’re trying to capture some aspect of founding era unwritten law that was fixed in amber in some relevant way.

And in some ways, like the prior restraint argument, I think almost everyone agrees, takes that form. That’s what we’re doing here. We’re trying to figure out what qualified as a prior restraint, because we know there couldn’t be any of those.

And then the question is, were there things that were of a different kind that were not codified unwritten law, but rather were more general rules about respecting natural rights and disabling the government from acting for particular reasons. And those are the ones that are harder, both because we need to figure out, “Well, is the government acting for this reason?” And especially are they acting for this reason when they tell us they’re acting for some other reason, but we don’t believe them. And so that’s why it feels sort of and mushier, this approach to rights protection, because not all of the rights were necessarily identifying a set list of positive, even if unwritten rights, and then fixing them in amber against legislative infringement. And so it’s really that margin that generates a lot of the disagreement.

Joel Alicea:
Right. And all three of you, I think this has come through in your remarks, but also in your responses, all three of you have an understanding of the original meaning of the free speech clause that is quite different from modern doctrine in various ways. And I think it’d be helpful just in thinking this through, because it’s apparent that the modern free speech clause doctrine differs from the original meaning. I think that everyone agrees on that. It would be helpful to know if there are areas of current free speech doctrine, important areas, not like less significant things, but important areas of free speech doctrine that you think is actually consistent with the free speech clause’s original meaning, even if it’s not a perfect fit, even if it’s not exactly… It’s like roughly a fit with the original meaning. I’m curious if you have any thoughts on that, anyone in any order.

Professor Sachs:
What are some important areas modern versus doctrine to assess?

Joel Alicea:
Well, I mean, content versus content neutral, categorical exclusions from speech, all of campaign finance law.

Professor Sachs:
So, I would say that a lot of the time, place and manner, rules, a lot of the content and viewpoint are trying to get at something, which is the question of, is what the legislature going after the good faith expression of the opinion, the viewpoint? Are they really trying to prevent you from saying, “I’m criticizing the governor?” Or are they trying to do something else? Namely, this is just too loud and it’s three in the morning, and we literally don’t care what you’re saying, just don’t say it that loud at three in the morning. And I think that would be very easy to understand as a, you have a natural right to shout, but you might infringe the rights of others, and we let our representatives decide how to deal with all these conflicts. And if they say, “That’s too loud at three in the morning,” that’s okay. That’s not stepping on the toes of speech in any real way.

Even stuff that’s more complicated. So like RAV, the hypo that just Scalia gives of, could a state prohibit obscenity critical of the governor and have a special penalty, not just for obscene material, but obscene material that makes the city government look bad? And he says, “No.” And that actually I think has some legs under this approach because it’s not just about, is this First Amendment covered? But rather, what’s the government doing when it regulates this? And can it explain why obscenity against the city government is more obscener in the relevant way and such as to justify its prohibition? And if it can’t, then that seems like a problem. It seems like what it’s really going after is the viewpoint, and that’s what it’s not supposed to be doing.

Joel Alicea:
So time, place, and manner might be broadly consistent. Also interesting that your response there seems to be echoing Justice Kagan’s than Professor Kagan’s understanding of free speech doctrine, right? As mostly trying to smoke out an illicit motive for suppressing speeches.

Professor Sachs:
I would think to the extent that strict scrutiny and tiers of scrutiny like that belong, it’s for the John Hart Ely smoking out features, not the, yes, this is a viewpoint, but the government has a really good reason to not want anyone to think this and that I think is more difficult.

Joel Alicea:
Yeah.

Professor Jud Campbell:
No, I think that’s right that if you just ask, did the founders believe in tears of scrutiny? The answer is obviously no. So you got to do some sort of move to get on board with the idea that modern doctrine and its basic contours is in any way a reflection of founding era of constitutional law. And I think that what Professor Sachs just did is the right sort of move, that the First Amendment to the extent it’s recognizing retained natural rights, recognizes the regulability of those rights. And then we have to ask, has the state pursued the right sorts of goals or the wrong sorts of goals?

The thing that I would say complicates this with respect to current doctrine is that the founders thought that the types of goals that the government could pursue included, included communicative harms that change how people think. So what do I mean by that? Well, something like blasphemy. Blasphemy affects how the society thinks about religion. And through that effect, affects people’s behavior, whether they appreciate the solemnity of an oath, whether they have the sort of basic morality that’s necessary to tie them to the social order, to obey law and so on.

And so those prosecutions are unanimously endorsed by founding error judges. Same thing with sedition. And it’s just antithetical to how we now think about freedom of speech, that any sort of interest that the government asserts in changing how it is people think, that’s an interest that now we call a viewpoint-based interest. And therefore, it’s categorically disallowed under the First Amendment. So I think that disjunction creates a really big space between how we tend to think about modern doctrine, the First Amendment under modern doctrine, and how they tended to think about speech and press freedoms.

Now granted, the evidence is largely at the state level. Most of the cases for blasphemy, certainly all of the cases I’m aware of for blasphemy are at the state level, and a lot of the sedition case laws at the state level too. But in terms of trying to justify kind of modern tiers of scrutiny framework, I think that the move you would have to make is exactly the one that Professor Sachs just made.

Professor Haley Proctor:
I don’t necessarily disagree with what they’ve been saying with respect to the state level regulation. Federal, it’s easy. Anything that they say Congress can’t do, they’re getting right. But in seriousness, so one thing that I think a particularly focused textual reading of the free speech clause might lead some people to conclude is because it says Congress shall make no law, it doesn’t restrict other federal actors. Of course, modern doctrine restricts other federal actors. And I think that’s entirely right, because the executive would not have been able to act on people’s speech rights without a law. And if Congress can make no law, then the action wouldn’t happen. So, I guess that’s one way in which I think the modern doctrine is getting it right.

Joel Alicea:
Before I get to, I’m going to turn it to Q&A in a second, but before I do that, just one quick clarifying question, Professor Proctor, about your proposal, which is provocative in a really great way. So, the federal government has power to do all sorts of things that affect speech, if we just think of speech as speaking, right? The speech act, right? So I take it you can’t be intending to say that the First Amendment disables Congress from doing anything that could in any way affect people speaking, because that would be a very sweeping prohibition, where it’s hard to… There are all sorts of things that would seem to be legitimate functions of the federal government under its enumerated powers that I would think that they probably weren’t trying to disable in that way, like preventing perjury in federal court, or before Congress.

So A, tell me if I’m right about that, but if I am right about that, then wouldn’t the question of whether Congress has abridged the person’s speech right… Rather, whether Congress has exceeded its power by regulating speech, just come back to the same question of, well, what did speech mean, the freedom of speech mean? And then we’re just kind of back to the same issue of this contours of the right, and so it’s looping right back into this debate about, is it Professor Campbell’s view, or is it my kind of Bruen and I’s kind of view of it?

Professor Haley Proctor:
Yeah.

Joel Alicea:
Aren’t we getting back to that same debate anyway?

Professor Haley Proctor:
So, I agree with you that Bruen is trickier with the First Amendment, for the reason that you’re identifying, which is the Second Amendment, as you have so eloquently shown, I mean, it describes what it is that it’s protecting. The keeping and bearing our barns literally means having and carrying weapons. Freedom of speech, freedom of press, those are figurative concepts. I mean, they’re figurative phrases that refer to concepts. And do those concepts include all speaking, all words that we would do? And I think probably not, but I don’t think that means all of a sudden all of the restrictions get back into the Bruen first step. And the reason for that is the framework that Professor Campbell was laying out for you all is we have this idea of the natural right to speak, and then we have the determined features of that right.

And so I think anything that would be understood to be within the natural right to speak, Congress couldn’t regulate that as speech. And it might reach perjury, right? I mean, that seems to me to be speaking. And it could be that Congress would have to rely on the states to enforce it. But I do think that there is a more complicated historical inquiry that would have to happen at Bruen step one than has to happen under the Second Amendment. Defamation or seditious libel is still speech. Any sort of defense of a seditious libel law would have to happen at the second step.

Joel Alicea:
I like how my setup to the question was, “Surely you don’t mean this because that’d be way too hardcore.” And your response is, “I might be that hardcore.” So, let’s go to questions from the audience. We have a few minutes for this. I will only ask you to do three things. One, wait for the microphone when I call on you. Second, briefly state your name. And third, ask a question concisely. I will stop you if you start giving a speech, because I want to make sure that we get enough questions in. Okay. Sir?

Professor Sachs:
Speech is not that free.

Audience Person 1:
My name is Roger Cochetti. I am an author and a commentator on technology policy, retired executive from IBM, Verisign, CompTIA Technology Companies.

My question has to do with the interface of advanced technology and free speech. We are on the verge today of a whole new category of speech, and that is machine generated speech. And I’ve been trying to understand this. I’m really inviting comments on how to even think about this, because most machine generated speech has been classified as what I call sort of puppet dogma. In other words, a videotape of a speech is the person who made it, not the videotape. And an artificial intelligence generated speech is the speech of the people who set the algorithms and blah, blah, blah. So these are puppets that… And by the way, if you ask ChatGPT, which I did a minute ago, they said machines are just people. They have exactly the same rights of speech as people.

But the threshold we’re entering now, if we haven’t passed it already, is 100% purely machine created speech, in which the artificial intelligence is not created by a human. The artificial intelligence is created by another artificial intelligence. In other words, second generation, third generation artificial intelligence.

Now, you can always say, well, there was eventually a human back there, a DOS was created by humans, the factory is staffed by 90% robots, but 10% humans, so there’s really a human. But we have a whole new category of speech that we don’t really have very much of today, but we will soon. And that is 100% machine generated speech.

Joel Alicea:
And can we get to the question then?

Audience Person 1:
So when I think about what the founders would have said, they would have said, “Well, that’s like asking what are the speech rights of a mule?” I mean, that’s not a person. The mules don’t have speech. So do machines, do pure, real only machines, have any rights? And how do they compare with human rights?

Joel Alicea:
Yeah. This is a very interesting and provocative question. Anyone have any thoughts on this?

Professor Sachs:

So, I think one way to look at this is to think about cases where we worry about liability for speech that’s directed toward the public as opposed to private.

Professor Sachs:
So, if I put up a shack, this is mushroom advice, five cents, like in Charlie Brown, and someone comes and says, “Can I eat this mushroom?” And I’m like, “Yep, that’s fine,” and they eat it and they’re poisoned, I might be liable. But if I publish a book, Steve Sachs’ Guide to Mushrooms, and I negligently say, “That picture of a mushroom, yeah, that one’s fine,” and someone eats it and is poisoned, there are cases that say they can’t sue me. And likewise, you can imagine going on ChatGPT and typing in, “Here’s a picture. Can I eat this mushroom?” And it might get the answer wrong.

And so the reason why the doctrine, the modern doctrine at least, that says you can’t sue the author for negligence, is not inconceivable on the original picture, because they were engaging in a good faith expression of their opinion. Maybe they made a mistake about that mushroom, but they were trying, and they had not taken on any specific obligations to you. The legislature would be able to say when you have your mushroom advice shack, that’s a personal relationship just like lawyer client. They engage in speech all the time, but that might be something where we add, the legislature adds specific obligations there.

I would think that if someone sets up the mushroom app that buys a lot of ChatGPT tokens and just sort of feeds the question, and then gives you the answer, I think it would be roughly similar. It’d be a sense of like, are they trying to provide this general communication to the public? Or have they undertaken a specific obligation towards you where there are heightened expectations of accuracy?

And so I think in some sense, yeah, we would look through the machine to figure out like, “Okay, is the owner or operator that machine liable to you?” Obviously we can’t punish the machine, but is the owner or operator liable? And why? What is their connection to you?

Professor Jud Campbell:
Yeah. So I have three quick thoughts. So one is a kind of simple answer would be on my framework, their natural rights, those are rights of persons, and therefore they don’t belong to machines. Second answer would be that from the standpoint of founding era customary law, we don’t have a legally determinate answer to that question. So to the extent you can make an argument that these sorts of things implicate the speech right, that would be subject to the determination of the people themselves through their representatives, which is to say it remains an open question, and it’s not one that judges should be stepping in to try to answer.

The last thing I’ll say though is, even if we don’t say any particular person has rights in this situation, general principles of social contract theory would at least recognize limitations on the government’s ability to do things that don’t advance the common good. So the founders would at least recognize that we’re the government to pass a law saying, “Any AI bot that seems to be liberal needs to get shut down, and any AI bot that is with the conservatives can stay up.” That may not violate any particular person’s rights, query the points that Steve is asking about, but it would clearly contravene the basic point of having a public good limitation at the founding, which is not to have self-interested partisan legislation, but instead to have legislation that’s aiming to promote the good of the whole. And so I think that makes it a little tricky to just say, “Well, they’re not humans, therefore they don’t have any rights.” The founders would at least recognize, “Well, in regulating any activity, there needs to be some public good that’s advanced.”

Joel Alicea:
Do you have any thoughts on this? Okay. Other questions? Yeah, in the back there.

Audience Person 2:
My name’s Brian Boyle. First of all, thank you. This was amazing. Really interesting discussion.

So I think maybe all four of you to different degrees are open to a very different role for legislatures in these areas than maybe, if you grew up in the era of the war and court where you think the judges are deciding everything, it might sound a little surprising. So I guess my question, it picks off of an aspect of Judge Campbell’s scholarship around the educative function of declaring rights. So, if freedom of speech was maybe put into the Constitution to actually remind the people and their representatives of how important it is, I’m wondering if you could say a little bit about your thoughts on making legislatures the center of the debate around how to best protect rights, and making judges much less of a primary mover here. So, it’s a question for everybody.

Professor Sachs:
I mean, so I would say that putting it… There were plenty of governments at the founding that were willing to act on rights claims without text. So, standard example of this is state the none in Georgia that basically found a right to bear arms, not withstanding the absence of any textual provision in Georgia’s constitution to that effect. But looking at the Second Amendment, not rejecting Barry v. Baltimore, not saying that the Second Amendment applied of its own force in the states, but just saying, “Look, this is really good evidence that this is among the fundamental rights of American citizens, and so that they put it in the Second Amendment. And so therefore we should understand the delegation of legislative power to the Georgia legislature as implicitly excluding a power to do that.” If they wanted to confer a power to do that, they would have told us.

And you can even think of things like the rule that no legislature can bind to future legislature, kind of like that. Most constitutions don’t say that, but everybody knows it. And if they were going to let them do it, they would have told us. And so they serve as this background.

Professor Sachs:

But having the words in the Constitution really do help, because they avoid disagreement about that fact.

Professor Sachs:
And they also, I think Madison put it emboldened the judges. They make the judges feel a little bit easier when they do have to say to the legislature, “We just don’t believe you.” It’s easier for them to do that, when it’s like, we know that speech is really important, that this is an area of fundamental rights. We have it in there and so we are more capable of intervening than we would be if we were doing it purely under, let’s say, the Ninth Amendment, or purely under claims about implicitly reserved legislative powers.

So it has a function, both a political function and a judicial sort of legal function, but it doesn’t necessarily change the content of the right being secured. And of course, the 14th Amendment has a totally different function because it makes things into federal questions that would not otherwise be federal questions and allows for Supreme Court review, as Judd and I have argued elsewhere.

Professor Jud Campbell:
Yeah. Yeah. I mean, I certainly agree with that, but I do want to add two things. So one is, when Madison introduces the Bill of Rights, almost all of the impetus of the first part of the speech, which is explaining why do we need this, is on the need to educate citizens about what their rights are, and to reaffirm for legislatures the existence of those rights. And the point about the judges is peripheral. It’s added in two paragraphs at the end. So it’s there. It’s an important facet of founding our rights discourse, but it’s secondary to the more important point, which is about maintaining popular control over delineating where it is that the boundaries of our rights start and stop.

And then you can see that again in Federalist 51. So Federalist 51, written by Madison, is all about constitutional enforcement. How are we going to make this thing work from a practical standpoint when it comes to making sure that we maintain fidelity to our constitution? And he says lots of different things about how to ensure that rights are respected, talks about separation of powers, talks about federalism. What does he not talk about? He doesn’t ever mention judicial review. That’s not to say it’s not there. It is a piece of founding our rights discourse, but we really do lose a lot from a founding error perspective. If we limit our understanding of how rights are enforced to judicial review rather than thinking about it in this kind of broader, more representative manner.

Joel Alicea:
Professor Proctor, anything?

Professor Haley Proctor:
Yeah, just a small addition on that, because I agree one of the responses to the varied forms of argument about why the Bill of Rights would have been unnecessary that Madison offers is, well, it does, it provides a focal point for the people to enforce these rights through the political branches, but he also acknowledges that that sort of political security exists, that people made political arguments in parliament and says, “Those aren’t adequate. We need more than that.” And so that is a part of his speech where he’s saying, “Maybe we’re doing something more than just codifying the preexisting common law.”

Joel Alicea:
So, in our second panel, we’re going to focus on modern campaign finance doctrine and the originalism question in a more granular forum. We’ll come back in 15 minutes for that. But in the meantime, please join me in thanking our panelists.

15 MINUTE BREAK

Joel Alicea:
Okay. Let’s get started with panel two here at First Amendment Originalism Conference co-sponsored by AEI, the Center for the Constitution of the Catholic Intellectual Tradition at Catholic University, which I direct, and the MacArthur Foundation. If you’re just joining us, you missed panel one, which was on the original meeting of the free speech clause, I recommend going back and watching that where I give a little bit more of an introduction to the conference itself. I’m Joel Alicea. I’m a non-resident fellow here at AEI and a professor at Catholic University. I’m really honored to be joined with such a distinguished panel as a group of panelists for this panel on originalism and campaign finance doctrine.

And it’s a timely panel for the reasons I discussed in my introduction, which is the 50th anniversary of Buckley v. Vallejo, a foundational campaign finance case. That 50th anniversary is tomorrow. And the Supreme Court is hearing an important campaign finance case, this term, National Republican Senatorial Committee v. The Federal Election Commission. They already heard that case and we expect a decision sometime this spring or summer.

So, I’m going to briefly introduce our three panelists in the order in which they will speak, which is the order that you see to my right. They’ll have 10 to 15 minutes to give their opening remarks. We’ll do a moderated discussion after that, I will moderate that, and then we’ll open it up to Q&A at the end. I’ll give you the ground rules for the Q&A when we get to that. I’m going to give just a brief intro for each of our panelists because they are so distinguished. They have extensive resumes and I’m not going to get into all of that.

To my immediate right, Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School. His scholarship focuses on constitutional law, law and technology, and institutional corruption. He clerked for Justice Anton Scalia on the Supreme Court and Judge Richard Posner on the Seventh Circuit. Professor Lessig graduated from Yale Law School, earned a master’s degree in philosophy from Cambridge University, and received his undergraduate degree from the University of Pennsylvania. And I really should have said at the beginning of the conference, I’ll say, I’ll cure this now, that…

They should have said at the beginning of the conference, I’ll cure this now, that this conference was actually Professor Lessig’s idea. He reached out to me about doing a conference like this and has been instrumental in helping organize it. So I’m very grateful to Professor Lessig for everything he did to bring this conference about. In addition to pulling double duty by also being a panelist and having to prepare for this, I didn’t have to do that much preparation. So I really appreciate that Professor Lessig.

Professor Bradley Smith is the Josiah H. Blackmore II and Shirley M. Nault Professor of Law Emeritus at Capital University Law School. His scholarship focuses on campaign finance law and free speech. Quite relevantly for this panel, he’s the former chairman of the Federal Election Commission. He graduated from Harvard Law School and Kalamazoo College.

Michael Morley is the Sheila M. McDevitt Professor of Law and Faculty Director of the Election Law Center at Florida State University. His scholarship focuses on election law, constitutional law, and federal courts. He clerked for Judge Gerald Tjoflat on the 11th circuit and he graduated from Yale Law School and Princeton University. He also had by far the most arduous journey to join us today of all of our panelists. It was like a Planes, Trains, and Automobiles situation for him to get here. So we’re very grateful to Professor Morley for making it for this panel in light of our weather difficulties.

And we’ll start off with Professor Lessig.

Lawrence Lessig:
Great. Thank you. And thank you so much for everything that’s been done to organize this extraordinary event. So I’m going to present a paper titled Stating the Obvious. It goes like this.

On the Jubilee Eve today of Buckley, at least this much is certain. Buckley has an originalism problem. We’re alive in an age when the court is increasingly extending its originalist methodology to doctrines of constitutional law that it has inherited from earlier courts. That discipline has not yet been applied consistently to the free speech clauses, either in general or campaign finance jurisprudence in particular. In the few moments that I have the privilege of your attention here, I want to map out precisely how significant this originalism problem is for campaign finance jurisprudence, and to suggest two principled responses for any originalist keen to apply originalism consistently in this domain.

We can glimpse the challenge by noting a campaign that Justice Thomas has launched to remake the doctrine announced by the court in New York Times versus Sullivan.

In that case, launched at the height of the Warren Court’s big idea jurisprudence, the court created an important immunity for journalists and newspapers threatened with defamation lawsuits for inaccuracies in their reporting. Justice Thomas has challenged the court’s authority to create such an immunity.

Sullivan, he writes, is a “policy driven decision masquerading as constitutional law.”

Rather than follow its policy, Thomas would have the court “embrace the original meaning of the First Amendment.” Drawing on the works of Judge Campbell in particular, Thomas tells us that the First Amendment originally did not empower courts to second guess the legislature as it passed laws it believed advanced the public’s interest. Even if those laws plainly affected what we today would consider rights of free speech.

The only question the legislature was to ask was whether the law advanced the public interest. That question was originally at least to be answered by the legislature alone.

“There is no evidence from the founding,” Thomas writes, “indicating that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare.”

There can be no blinking the fact that applying this standard consistently would affect the overruling of Buckley versus Vallejo. I’ll confess, when I first read Justice Thomas’s characterization of Sullivan as a policy-driven decision masquerading as constitutional law, I think I literally blurted out in the library, “Justice, have you ever read Buckley versus Vallejo?” While the Buckley Court adverts to the framing purpose in enacting the First Amendment and spend some time working through the evolution of the appointments’ clause, nowhere in its 230 pages as it appears in the US reports, does the court give us anything like an exegesis of the original meaning of the First Amendment in the context of the late 19th century American jurisprudence.

And if one did follow the methodology Justice Thomas has outlined, following the insights of the many scholars, including Judd and Jonathan Gienapp in particular, as they have evinced, one would conclude that while the First Amendment certainly directed the Congress not to abridge the freedom of a speech, it was not for the court to decide whether the laws Congress might have passed to advance the public interest indeed do advance the public interest.

Speech was a retained natural right. Retained natural rights were not counter majoritarian constraints. On the legislature, they were retained through republicanism, meaning they remained subject to regulation by the people’s representatives. That methodology would, in other words, mean Buckley is no longer law.

This is the First Amendment problem that originalism creates. However, directly or easily, the overruling of Buckley follows from the method of analysis that Justice Thomas has sketched. It is clear that that method produces a radical shift in the scope of First Amendment protections. While some might celebrate that shift in some contexts, I would celebrate it in the campaign finance context, the commercial speech context, others might celebrate that shift in other context, New York Times versus Sullivan. There is no doubt that it would constitute a radical shift, and that radicalism may be reason enough for a court to ignore originalism here.

But I suggest there’s actually a narrower way to apply at least the democratic principles of originalism, at least in the context of campaign finance jurisprudence.

If to follow Attorney General Meese, we seek to avoid a constitutional practice where the framers supply the words, but the justices supply the meaning, we could follow a method of originalism that minimizes the justice’s subjective power to craft doctrine in a way that might advance their own personal political preferences. But differently, we could advance a doctrine that binds them to a standard that they themselves cannot set, namely as originalists believe, a historical standard.

So for example, Buckley grounded the power of Congress to regulate political speech in a “sufficiently important” or “weighty interest” to avoid corruption or the appearance of corruption. Later cases have narrowed that conception of corruption to quid pro quo corruption alone. But of course, again, in the 230 pages of Buckley, nowhere does the Court suggest why quid pro quo would be the exclusive type of corruption that Congress is free to regulate to avoid.

Certainly that conception of corruption is a far narrower conception than the one scholars have shown us the framers were obsessed to police. Thus, rather than limiting the scope of Congress’s power to quid pro quo corruption alone, a method that sought to ensure that it was not the judges picking the values that the Constitution would protect, but instead some external constraints could tie the test to an understanding of corruption prevalent at the time this higher law was enacted. The court could, in other words, embrace a conception of corruption that the framers themselves would have held to be most prominent.

I have for many years attempted to map that complimenting conception. At the time the court decided McCutcheon, I published a work that had cataloged every surviving use of the word corruption around the time of the framing. Those uses were coded to identify the kind of corruption that the framers were describing.

That analysis demonstrated that the framers were plainly focused primarily not on individual quid pro quo corruption, but the corruption of institutions. So when the framers spoke of the corruption of Parliament, for example, they were not referencing the practice of members of Parliament to accept bribes for their votes, something I’m sure certainly happened. They were instead referencing the rotten boroughs and the Crown’s ability to effectively select members of Parliament from those boroughs. That power corrupted Parliament because it conflicted with the institutional design of a Parliament independent of the Crown. That institutional corruption was their focus, not exclusively, but primarily.

An originalist could use this complimenting conception of corruption to craft a vision of Buckley that was more inclusive in its approval of regulation, targeting not just quid pro quo corruption, but corruption that undermined the proper dependence of republican institutions. And from this perspective, one clearly improper dependence could be framed in Madisonian terms.

Madison told us that the house at least would be “dependent on the people alone.” And in Federalist 57, he directed that by the people he meant, “Not the rich, more than the poor.” But a system of campaign finance that increasingly depends upon contributions and the tens of millions of dollars from an ever shrinking number of billionaires is plainly an institutional corruption of that design. Now, this conception too might claim originalist credentials, though it ignores the original limitation on judicial power so central to Justice Thomas’s explication of the tie in the context of Sullivan.

But I want to end my brief comments today by underlining what both conceptions emphasize, and by contrast, what they reveal about modern originalism.

Lawrence Lessig:

Though many seem to treat originalism as if it were just an interpretive theory, I have always understood originalism primarily as an expression of democratic or constitutional theory.

Lawrence Lessig:
The grounding motivation for the conservative legal movement out of which modern originalism was born was a democratic challenge to judicial supremacy. It was a bakalian demand that when judges claim the authority to displace the acts of a democratic legislature, they identify clearly the source of that authority in higher law. And the higher law from which they can draw that authority would be the constitution as enacted by we, the people, whether just the text, as most originalists would mean, or the text and its background presumptions as historians like Jonathan Gienapp would frame it.

Originalism on this count is an interpretive theory to understand what we, the people did at some particular moment in our constitution’s history, that could be 1791 or 1868 or 1920. Regardless, the objective of this originalism should be to help us understand what we, the people plausibly meant by the words we used at the time we used them.

That discipline, of course, would radically shrink the footprint of the judiciary over a wide range of governmental power. And of course, we can debate whether from a policy perspective, we like that consequence of that shrinkage or not. But I suggest from the perspective of principle that the originalist would insist that upon that shrinking, in order to be consistent with the Democratic theory that was the founding motivation for this whole enterprise, I should think that if a court can’t point to a plausible moment when we, the people ratified the conception of law that they are now enforcing against the acts of a Democratic legislature, or the people through an initiative, then that court is acting ultra vires.

Lawrence Lessig:

It is thus perhaps too obvious to remark that the elaborate jurisprudence of campaign finance law birthed 50 years ago tomorrow and raised across a half century of elaboration has any real connection to anything we, the people, ever said.

Lawrence Lessig:
The idea that judges would be policing the intricacies of legislation, addressing the legislature’s conception of corruption from this originalist perspective is, I suggest, just crazy. Everyone here knows of the extensive regulation of the time of the founding of activities that today we would consider core First Amendment activities: lobbying contracts not enforceable, lobbying itself prescribed by certain state constitutions, the act of treating considered illegal. And all of this, of course, was against a background which gave to the legislature a broad swath of authority to interpret the public interest as they thought proper.

One such interpretation were the Aliens and Sedition Acts, which modern law treats as some kind of frolic and detour, but which, of course, was no frolic for the Democratic Republicans that felt its force. Instead, I suggest it evinced a people not yet settled on whether their representatives could be checked in their judgment of the public interest, and if they could be checked, it evinced a public not yet settled on who could affect that check.

Jefferson and Madison thought Congress could be checked by state legislatures through resolutions. I don’t know of any prominent faction that pushed the idea that it would be the Supreme Court that would be that check, at least directly. We might like the Constitution that results from this discipline, or we might not. But my point in this intervention is not to proselytize originalism. My point is much narrower. It is to identify the inherent inconsistency in the current jurisprudence of the court.

Lawrence Lessig:

And because I believe that the integrity of the institution of the Supreme Court is essential to our republic, it is my purpose as well to identify a particular character of that inconsistency that I would hope, I would trust the court takes notice of.

Lawrence Lessig:
That character is this. If a court is going to be radically remaking the scope of federal constitutional law in the name of a doctrine called originalism, it should at least ensure that its activism is balanced, politically balanced.

If it’s going to remake the law to advance what is perceived to be conservative ends, the Second Amendment or the remaking of the scope of the libertarian constraint on regulation expressed through the concept of privacy, that was Dobbs, it should be open to remaking the law and context certainly be perceived to advance liberal ends. My conservative friends will insist there’s nothing conservative in the idea of allowing unlimited influence by a tiny few over our representative process or anything conservative and allowing the corrupting dependents of our elected representatives upon those very few. I welcome the correction and the suggestion as evinced by the 75% of Maine voters who supported an anti-Super PAC initiative now being litigated in the First Circuit, suggesting this might be one issue that unites all Americans.

But in defense of my suggestion, I offer only the common wisdom that consistently suggests that this Supreme Court would never do anything to challenge the power of money. Whether that’s conservatism or not, the point I defend here is that it is not a principled expression of originalism, and the justices who aim to demonstrate a practice of principled originalism need to track that inconsistency if they are to sustain the impression, which I think they are rightly seeking to sustain that their jurisprudence is a jurisprudence of principle.

Thank you very much.

Joel Alicea:
Professor Smith?

Bradley Smith:
Well, thank you Joel and the Senator and AEI for inviting me. Thank you, Michael, for your heroic efforts to get here. And I want to thank Larry, in particular, Larry and I, butt heads not infrequently, including in the litigation he referenced in Maine where we’re on the other side, but Larry is always a gentleman, always plays by Marcus of Queensbury rules, and understands that it’s not personal. We’re arguing about important principles in good faith, and it’s always a pleasure to share the podium with Larry.

There’s no doubt about it that Buckley is not an originalist decision. It’s made at the high point really of non-originalist interpretation of the Constitution. It’s tremendously long. It was referenced in the first panel. It’s over 200 pages. It’s got over 65,000 words, and there’s no mention of originalism, no mention of what was the originalist thought. Nothing. I mean, you can parse the decision, you can look for words like adoption, like when was the amendment adopted or adopted?

Just nothing there. You search it. It’s just totally void of much appeal to originalist principles. So the question then is I think, how should a modern originalist court look at something like Buckley?

Now, first you have the question of precedent, which is also a value that many conservatives and even many liberal justices bring to the issue. But let’s assume that a decision has been made that we can go against the precedent if the case is warranted on originalist grounds. Applying the Bruen framework, and I have to note here that Justice Thomas… I’m on the deregulatory side here. I don’t think Congress can regulate this. I don’t think the states can regulate most of it. Justice Thomas agreed with me. That has been his opinion consistently in almost… What is it now? Thirty-five years that he’s been on the court. He has been on the deregulatory side in every single campaign finance case.

So when we appeal to Justice Thomas, we’re either assuming he is a hypocrite, could be, or he simply does not understand after 35 years, the implications of his own jurisprudence. I think both of those are weak presumptions on which to begin the assault on originalism and support for the result in Buckley vs. Vallejo. Now, applying the Bruen framework that Thomas delivers, we would start by noting that the First Amendment plainly covers political speech, and hence, presumptively protects the conduct at issue with its broad pronouncement: Congress shall make no law.

Of course, we know that that’s not entirely true because when the 14th Amendment is adopted, the First Amendment is clearly applied to the states. We don’t suddenly say, “Oh, the states can no longer regulate, say, defamation or perhaps fighting words, or incitement to riot, or false commercial advertising.” So perhaps no law doesn’t really mean no law.

Bradley Smith:

I do suggest that it means that we ought to approach this with at least a presumption that regulation of political speech is not permitted under the Constitution.

Bradley Smith:
And under Bruen, we would do that in part as a major part of our inquiry by looking at what kind of laws were in effect at the time that the First Amendment was passed. What were people thinking? How did they understand the First Amendment at that time? And if we look at the founding era, there is simply no effort, no record of any type of limit to enforce just general limits on spending in campaigns or general limits on contributions to groups of people that were engaging in campaigns.

James Madison, so influential in the creation and passage of the Constitution, later the draftsman of the First Amendment, lost his first campaign for office in 1777 because he thought it was inappropriate to spend money in a campaign.

He never made that mistake again. For the rest of his career, he was quite happy to spend quite a bit of money and his experience indicates, demonstrates the surprisingly expensive nature of politics even during the colonial era. Note that Madison’s first run was, I guess after the Declaration of Independence, but before that Independence was really effectuated, it was in 1777. And it indicates that people, candidates were expected to incur considerable financial costs to show that they were serious about the position, and that they had the funds and the inclination to take the job seriously.

Now, shortly later in the Constitution, as the Constitution comes up, Madison and his colleague Hamilton and their publisher, Archibald McLean, spent enormous sums in the terms of the day from their personal fortunes to distribute copies of The Federalist.

To quote historian Anthony Gaughan, “From the very beginning of American politics, Madison, Hamilton and the Constitution’s other framers understood that money was essential to disseminating political speech. Indeed, without it, the Constitution itself might never have been ratified in the first place.” He also notes that the parties did not have a level playing field, and nobody tried to claim that they did. The federalists really had pretty much all of the advantages, a clear advantage in the financial battle, which didn’t seem to perturb Madison and Hamilton one bit. Their conscious wasn’t bothered by the fact that they had enormous resource advantages over their anti-federalist opponents.

Now, later, as the schism developed between Hamilton and Madison that ultimately led to our two-party system, both sides spent lavishly on elections, which in that day mainly meant subsidizing partisan newspapers and providing for pamphlets and tracks, and so on to be circulated through the public. Lacking the business support that the federalists had, the Democratic Republican Party of Madison and Jefferson turned to wealthy individuals such as James Swanwick to essentially finance their campaign.

Swanwick, I mentioned because he financed almost their entire campaign in the whole state of Pennsylvania by himself. He was the Elon Musk of campaigning in his day, one might say. And they praised those who responded.

In 1799, as he prepared for a rematch with John Adams for the presidency, Jefferson wrote to a colleague, “Every man must lay his purse under contribution.” Meaning, “Put your money down, folks. We need it if we’re going to win this race.” And again, note that the Democratic Republican Party had these wealthy benefactors, but it was seriously outgunned in terms of social prestige, the levers of power, business control, and so on. And the truth is that very, very few ordinary Americans at that time had the wherewithal to contribute to political campaigns. Far fewer had disposable money for political campaigns than would have that today. We often say, “Well, not many people can afford to give, but it’s much easier for people to give today than it was then.” Many Americans were still essentially fighting for survival on the frontier, and so on.

Up until about 1790, candidates were expected to fund their own campaigns, but by 1800, big spending was underway as Madison and Jefferson’s Democratic Republican Party sought to dislodge the incumbent Federalist Party, and almost all of their funds came from a handful of people in extremely large contributions. Now, it’s true, as Larry mentions, that the Federalists sought to limit speech with the Sedition Acts of 1798, and one might say, “Well, that shows that there was some sense that Congress could limit this kind of speech.”

But note that the Sedition Acts were rebuked soundly in the election of 1800. The very passage of the Sedition Acts was one of the reasons that Jefferson won in 1800. So it may be true that the federalists already doomed to be a minority party desperately tried to hang on to power by regulating this political speech of their opponents or regulating political speech generally, but note two things.

First, it wasn’t even then a general limitation on your ability to put your money where your mouth is to support your political views. It was a limitation on sedition, on the content of the speech that was viewed to be perhaps within a common law exception to the concept of free speech, not just a generic, you can’t spend money. And note further, again, it was largely rebuked by the American public by within a decade of passage, the Alien and Sedition Acts were like bad, bad things that nobody wanted to talk about or pretend had ever occurred. Okay? So I think that the Alien and Sedition acts actually show how out of line with the common understanding of the First Amendment, the position that you can regulate political speech is.

Now, Professor Lessig attempts to get around this in what I consider to be sort of a curious way.

He goes to Buckley’s definition or Buckley’s statement that corruption might be a valid government interest to get around the First Amendment, at least in some circumstances. And then he suggests that we should take this modern term that the court says, “These are the circumstances where we think maybe we’re going to let the government regulate, and we’re going to label it corruption.” That’s our word. That’s our Buckley court word. It’s not a word that appears anywhere in the Constitution.

Professor Lessig then says, “Let’s take that 20th century word, transport it back to the 18th century, and see what people thought it meant then. Then let’s take it and bring it back up to the 20th century, and say, ‘Now it must mean not what you meant it to mean when you wrote it, but what someone else meant it to mean when they wrote it.’” It would be like if you had a law regulating sedans, and somebody said, “Well, in 1780, a sedan was a horse-drawn carriage.” Now, let’s bring that back up to the 20th century. This only regulates safety standards for horse-drawn carriages. Nobody would think that. We would understand that that’s not the way that it sort of works.

Corruption is merely Buckley’s way of describing what it considers to be a legitimate government interest, or we should say the prevention of corruption.

It is not a word that appears in the Constitution, and it did not purport to be interpreting a word used in the Constitution. It was rather interpreting what the court thought was a constitutional principle, and I think correctly, that the First Amendment did not allow general regulation of political speech, general efforts to limit the amount of political speech. And note that the court does this all the time.

For example, in Helvering vs. Davis and Stewart Machine Company vs. Davis, these are the laws that upheld the Social Security Act. The court didn’t say, “Well, what did Social Security, what did those words mean back in 1789?” Try to define them in those terms and then import them back up to the 1930s to decide whether or not you could have a Social Security Act. Rather, they said, “What are the principles of commerce, and so on, of the commerce clause and other provisions of the Constitution? Do they allow the US government to have this kind of social insurance?”

And you might think they got it right, you might think they got it wrong, but their reasoning wasn’t to try to take some word from the 20th century, take it back to the 18th century, and then transport it back up into the 20th century with some new meaning that Congress nor the courts meant when they wrote about it. Now, of course, the founders were concerned about corruption. There’s no doubt about that. And they did define it broadly. They included even the general promotion of private ends at the expense of the public good. They considered that corruption, and I think most people would today, at least abstractly. And the Constitution contains anti-corruption provisions. It has an Emoluments Clause. It has the power of impeachment. It has structural provisions that limit government and hence limit the power of people in government to use it for corrupt purposes, most notably perhaps the enumerated powers provisions, and the general welfare clause intended to limit spending to things for the general welfare as opposed for specific benefits to some people.

Many of those clauses, we have gutted, or they’ve largely been gutted by many of the same people who now turn and argue, “Well, now we have to limit political spending because we’ve taken away these other protections against corruption. We need to limit political spending.”

But again, at the Constitution, they did not use the term corruption in the Constitution, and there’s no indication that the framers or the public understood the First Amendment to allow restrictions on the amount of political speech. That is just not there. They were concerned about corruption, but there’s no free floating corruption principle in the Constitution that overrides the plain language of the First Amendment, and there was certainly no such principle recognized at the time of adoption.

Indeed, the term corruption was specifically deleted from an early draft of the impeachment clause because they thought this is too broad a term. We leave that in there. It can justify almost any kind of basis for impeachment. They didn’t like the idea that corruption would be a constitutional term that would give Congress this broad power to regulate anything it thought was corrupt. Quite the opposite. They wanted to avoid giving Congress that kind of broad power to regulate anything that it thought was corrupt.

So, Professor Lessig is essentially asking us to embrace corruption as the key concept espoused by the framers of the Constitution and the subsequent Bill of Rights, but remember that when the framers had a chance, in fact, they had many chances to include this in the bill in the Constitution, they did not do so. And in fact, they specifically took it out. Buckley later uses the term corruption in a narrow fashion to describe, and perhaps they’re incorrect on this, that the First Amendment cannot be justification to allow some regulation, but generally the First Amendment cannot be justification for ignoring the plain language of the amendment.

Bradley Smith:
… Might be justification for ignoring the plain language of the amendment. Now, as a final point here, I would note that one of those anti-corruption measures that was there in the original Constitution was the First Amendment and the ability to spend private resources to publish exposes of the wrongdoing of government and to publish reasons why government should be voted out of office or perhaps even impeached or something along those lines. In other words, the First Amendment itself is an anti-corruption measure and if you eviscerate that by simply limiting how much people can spend, you’ve eviscerated an anti-corruption measure using the broad definition that they would’ve had in the 1790s and in the 1780s. So I think that it goes exactly backwards to suggest that we should do otherwise.

And remember, by the way, the Federal Election Campaign Act that Buckley overturned portions of, limited political spending by groups such as Planned Parenthood, the NAACP, the ACLU, the NRA, Right to Life, the Chamber of Commerce, whatever it is, to $1,000 relative to, that’s a quote, a candidate. Whatever relative to a candidate means. I think it’s anything mentioning a candidate, talking about a candidate’s issues. It would’ve essentially squelched virtually all citizen participation in the act of political campaigns.

Okay. So I want to go on … Well, I note that Professor Lessig then suggests that the judiciary has too much power. I’ll just say that this obviously seems to run contrary to Marbury versus Madison, to our understanding of judicial power over a lengthy period of time. And I think it is simply not true to say that this is totally untethered to anything in the Constitution because there is something in the Constitution in which this is tethered, something that the people adopted. It says, “Congress shall make no law bridging freedom of speech.” That seems about as tethered as you can get to the idea of what they thought should go on.

Now I want to close, I’m going to run a touch long, but I’m going to beg some indulgement and I’ll be real quiet during the conversation after to just talk a little bit more about the question of whether Congress has the power to regulate campaigns at all.

Bradley Smith:

I would suggest to you that Congress does not have that power even before we get to the First Amendment. We have a government of enumerated powers. Where does it get the power to regulate campaign speech?

Bradley Smith:
Well, one possibility might be commerce, another might be what? General police power somehow given to the federal government.

I think clearly either of those apply broadly to just speaking about politics would eviscerate the First Amendment. It would just be gone because almost everything you could say okay, we can regulate all your political speech if that power is there. In fact, the source seems to be the times, place and manner clause, which gives government the power of, the federal government, to regulate the time, place, and manner of elections for members of the House. All right? It does not, by the way, note, there’s no manners clause in the election of the president, for example. Only time and place.

And I suggest to you that therefore, if we’re going to regulate, well, regulating campaign speech isn’t regulating the time of the election. It’s not regulating the place of the election, so it would have to be regulating the manner of the election. But if we look back to the meaning of that term at the time of the adoption, manner did not include speaking about candidates or speaking about elections. In fact, it very clearly was limited to the mechanics of voting. That is maintenance of voter list, setting the polling hours, determining the polling places, counting the ballots. It did not include just talking about candidates.

The idea that there’s a cabined off period that we can say is a campaign and that somehow we can regulate that as just a license to regulate all political speech. There is no kind of cabined off period like that. And that period is not an election. It is not an election any more than sex is a child. I mean, sex is necessary to have a child, right? But they are not the same thing. They are different things. One may be the predicate for the other, but they are not the same. And therefore, I suggest that Congress lacks any power to regulate in this area.

And we should recognize the effect on precedent that would happen if in fact we were to adopt, if we were to these constraints that Buckley at least placed on this, it would jeopardize dozens of precedents that many of us would recognize, I think, as originalist positions. It would jeopardize Tornillo versus Miami Herald, which struck down a law that purported to give candidates for office opportunity to respond to charges made by a newspaper in that newspaper itself.

It would eviscerate Mills versus Alabama, which limited the ability of newspapers to write editorials endorsing candidates close to an election. It would do away with New York Times versus Sullivan. Let’s assume that New York Times versus Sullivan is wrong along the lines that Justice Thomas presents, that there should be no special sort of tougher standard for a defamation claim by a public official. Okay, that’s fine. Who cares? If you’re the public officials in New York Times versus Sullivan, you just pass a law saying you can’t pool your money in order to run ads about concerning public affairs and spending more than $1,000, which people in fact did. Okay? That’s what that case was ultimately about.

So in the end, the consequences would be far-reaching contrary to almost everything that exists in our Constitution, and I think totally unsupported by any originalist standard of Constitutional interpretation. The Constitution is full of values and anti-corruption may be one of those, but those values are represented and fostered and protected by specific provisions of the Constitution, such as the Emoluments Clause, such as the First Amendment. And when we get away from that, we are not engaging in originalism, but we’re making it up as we go along. Thank you.

Joel Alicea:
Pressor Morley.

Professor Morley:
Thank you very much. It’s a privilege to be here. I’d like to thank AEI for inviting me, and it’s a particular pleasure to be on a panel with such distinguished friends and colleagues. I’ll start by using campaign finance law as a case study in the practical application of originalist approaches to constitutional interpretation, and then turn more broadly to the court’s decidedly non-originalist opinion in Buckley v. Valeo, or we might perhaps instead call it an A originalist opinion, not that it’s necessarily irreconcilable with originalism, but simply the court did not make any effort to do so.

So with originalism, in some respects, it’s challenging to talk about what originalism can tell us about campaign finance law, because originalism is not a particular theory of interpretation, but rather a family of theories. Depending on what particular type of originalist you wish to be, you might focus on the framer’s original intent, what Fred the Framer’s intended particular constitutional provisions to mean. This approach requires us to privilege the writings and the understandings of delegates to the Constitutional Convention or perhaps the ratifiers at the various state conventions.

Or instead, you might look for the original expected application of particular provisions where we would ask how the framers themselves, whether that again, be delegates to the convention, delegates to ratifying conventions, how they themselves would have resolved particular constitutional questions, and then adopt those answers as baked into the Constitution. Or we might take later variations of originalism and look for original understanding, original public meaning. What would a reasonable member of the American public in 1789 or 1791 have understood particular words to mean? This type of approach often allows us to take definitions and understandings from the founding era, but then apply them ourselves to a particular question in order to resolve a constitutional issue.

Or if you’re really in the academic weeds, you might be an original methods originalist where you would ask how a judge or a lawyer in the founding era would have went about resolving a particular constitutional issue, which may very well involve considerations beyond the text of the Constitution or what it happens to me at a particular point in time. And so right off the bat, different approaches to originalism can lead to very different answers about what the Constitution and the First Amendment in particular says about campaign finance law and different variations of originalism can likewise lead to different expectations about how far originalism can take you in answering a particular constitutional question.

But regardless of which of these theories you pick, most of them are going to run into some of the same types of challenges, particularly in the campaign finance context. I would suggest that originalism is often most helpful if you want to know the meaning of particular terms in the Constitution. Originalism is going to be your best bet for determining what a letter of market reprisal is and whether your HOA has sent you one, what a bill of attainer is, what an exposed facto law is.

But I would suggest that’s not the type of challenge we face in the campaign finance context. There generally isn’t a dispute over what the term speech means, even if the modern era offers more technological alternatives that weren’t available for engaging in political speech than the framers enjoyed. Now, of course, critics of Buckley, one of the bumper sticker slogans attacking Buckley is money isn’t speech. But of course, the Buckley Court never claimed that money was literally speech. Rather, the court said in our society, the fact that people have to pay money in order to receive speech by buying books or newspapers, or that people have to pay money in order to engage in certain forms of speech, such as by purchasing advertisements or flyers or mailers, doesn’t reduce or eliminate the constitutional protection to which that underlying political speech is entitled.

So whichever side of that particular debate you find yourself on, the fact remains the two sides aren’t actually arguing over whether books, newspapers, advertisements, mailers are speech, or for that matter, even whether the money involved in purchasing them are speech, but rather what constitutional implications, if any, flow from the fact that speech isn’t free in the financial sense at least. So we’re left deciding how the First Amendment should apply in the context of campaign finance law. And here, I would suggest that originalism, at least most variations of originalism, can become somewhat indeterminate.

Brad shared one anecdote. I have an even earlier one. James Madison was not the only loser.

Professor Morley:

George Washington lost his first election for the Virginia House of Burgesses because he didn’t buy voters liquor and he didn’t spend money on entertaining the voters at the polling place. What one source calls, “Swilling the planters with bumbo.” That was a mistake he was sure to rectify in the election of 1758, which he went on to win.

Professor Morley:
The point being campaign practice elections were conducted very differently from what we expect today. Campaign practices were different from what we expect today. With regard to presidential elections, overtly campaigning for office was not something that most credible candidates to do. As Aaron Burr would learn in 1800, the very last person who most founding era voters would trust with executive power was someone who went around telling everyone how much they wanted it.

In terms of the First Amendment, on the one hand, several states insisted upon it as a fundamental freedom as a condition for ratifying the Constitution. Many newspapers were outright mouthpieces for either the Federalist Party or later on the Democratic Republican Party, and their editors had very close relationships to prominent politicians and were more than willing to allow their newspapers to be used as a vehicle for publicizing these office holders and these candidates’ messages.

So as originalists, what lesson do we take from that? Does that tell us that coordination between candidates and private parties, private entities concerning political speech is constitutionally protected? Or instead that the First Amendment demands a media exception? Or that this wasn’t a constitutional issue at all at the time because no one was trying to prohibit it. That this was, if anything, simply a policy question that doesn’t allow us to draw any particular constitutional conclusions, which is all to say it can be very hard, even when you have originalist evidence, it can be hard to draw the correct originalist inferences.

And on the other hand, of course, some scholars contend that the original understanding of the First Amendment was that it was primarily a constraint on prior restraints of speech and did not prohibit after the fact punishments or other remedies for prohibited speech. One reason why New York Times versus Sullivan is such an important precedent is precisely because the court didn’t adopt that interpretation of the First Amendment and it wasn’t generally accepted until the 20th century.

As Brad reminded us before, the Federalist Congress under President John Adams passed the Sedition Acts and a dozen or two of his political opponents were prosecuted and imprisoned for uttering false, scandalous and malicious statements against the government with intent to defame. It appeared to be hard to claim strong originalist First Amendment protections against that backdrop, but of course the acts ended in 1801, President Jefferson pardoned everyone who was convicted and their fines were refunded precisely because under the Democratic Republican’s view, these laws were blatantly unconstitutional and the Sullivan Court in the 20th century would go on to contend that the court of history, whatever its subject matter jurisdiction may be, had held them unconstitutional as well.

Nevertheless, they reflected the considered constitutional judgment of both the president and the majority of both chambers in Congress in a year closer to the founding than the Jefferson administration and more than a century closer to the founding than Sullivan itself. All of these challenges arise, I would suggest from a common cause. The framers were a they, right? The framers were comprised of different people, members of different parties who didn’t necessarily share the same view, even on some very important, even on some very fundamental questions. And in fact, one of the reasons they were often able to reach a compromise on constitutional provisions was precisely because they avoided resolving some of the hard problems, right? The Madisonian compromise is a good example of that. Do we have to have lower federal courts? One side says yes, one side says no. The Constitution says maybe. Let Congress decide.

Professor Morley:

Vague language, indeterminate language, under specified language were some of the tools that allowed the Constitution to be adopted.

Professor Morley:
And so in attempting to go back from a 20th century perch and insist that there is one consensus originalist position for some of these issues, raises challenging difficulties, particularly for modern questions for which most framers didn’t have or certainly didn’t express any thoughts. Adding on top of that, as Gordon Woods teaches, concepts of republicanism, concepts of what counted as corruption changed fundamentally from the time of the Declaration of Independence to the time of the Constitution and throughout the federal era and beyond.

Another important question, of course, is just because the framers did something, just because we can point to a precedent from the founding era, does that necessarily make it unconstitutional? You think Secretary of State Marco Rubio has a lot of jobs, Secretary of State John Marshall at the same time served as Chief Justice of the United States Supreme Court. So if John Roberts were to happen to retire, would it be constitutionally permissible to have Secretary Rubio added onto the court as well simply because it happened once?

And this is an issue that arises with regard to the Supreme Court’s interpretation even in the early 1790s saying that Congress got it wrong. Several justices of the Supreme Court rise sitting as circuit judges declared that one of the first laws that Congress passed with regard to pensions for revolutionary war veterans was unconstitutional because it undermined the finality of federal court rulings. And so here again, we have Congress, we have the president adopting one view of the Constitution, we have several Supreme Court justices adopting a different view of the Constitution. From an originalist perspective, who’s right? Of course, when this happened in the context of state sovereign immunity, the seminal tribe tells us the American public rose up to say the Supreme Court got it wrong and immediately amended the Constitution to adopt the 11th Amendment, which didn’t actually protect the full scope of state sovereign immunity that the modern court says the American public was demanding.

So where does this leave us? With originalism, I think it is a firm, normatively desirable starting point for constitutional analysis, but not necessarily a guaranteed ending point in every case. I think originalism can, for lack of a better phrase, run out. It can answer certain types of questions. In other cases, it can narrow down the range of potential answers, but when a general consensus from the founding era doesn’t objectively exist on a particular issue, it’s not always the right approach to squint harder at Ferrand or try to look for another letter from Madison. Originalism can sometimes be more of a mood for constitutional interpretation, to borrow a phrase from the literature, counseling caution, humility and deference. It’s in large part a warning against incorporating our personal, subjective, moral modern views into a 230-year-old document.

Looping back to Buckley, I generally sit right next to the dead armadillo in the middle of the road as thinking it’s actually got it right. I find Buckley’s distinction between election speech and issue advocacy, even as narrowed by McConnell v. FEC, which might not deserve a 50-year anniversary, persuasive. I find Buckley’s distinction between contributions and independent expenditures for Constitutional purposes generally persuasive. I do think contributions pose a greater risk of a corruption than expenditures. Expenditures involve paying to engage in pure political speech. The First Amendment is properly read as barring the government from deciding that someone engaged in too much speech. And especially today, I think we’re past the notion that the campaign finance system decisively advantages either political party. I think we have more than enough wealthy people on both sides of the political spectrum supporting their respective candidates, supporting their respective policies, that we’re not having voices shut out of the political system.

My main objection to Buckley is that the court declares as a legislative fact that independent expenditures are inherently less corrupting than contributions. In American Tradition Partnership versus Bullock, the court refused to even consider what Montana claimed was evidence that independent expenditures in the particular political context of that state actually did pose a risk of corruption, actually did lead to corruption in the constitutionally relevant sense. Which is why I would say the court’s holding that restrictions on independent expenditures trigger strict scrutiny should not rest on the potentially falsifiable legislative fact that there is no risk of corruption from expenditures. I think instead that the court can acknowledge that a risk exists, but instead hold, there are less restrictive alternatives for dealing with it under strict scrutiny than an outright ban or a limit. Contribution limits in contrast are permissible since they’re subject only to intermediate or exacting scrutiny pursuant to Buckley, and so the existence of less restrictive alternatives is not sufficient to invalidate them.

Finally, in response to the points that Professor Lessig made, yeah, completely accurate. Fighting corruption, concerns about corruption permeates the founding era debates, was one of the main driving forces underlying many of the provisions in the Constitution. I would like to throw out, for purposes of discussion, this isn’t something I’ve written about yet, so this is a tentative hypothesis. One of the other fundamental themes, one of the other concerns that permeates particularly the Constitutional Convention is ending what state legislatures were doing with regard to populist impulses to undermine property. Legislatures were responding to poor farmers. They were responding to debtors by not enforcing contracts, not allowing mortgages to be foreclosed, devaluing money, refusing to enforce debts. And so one of the reasons many of these issues were raised up to the national level was in order to prevent some of those extreme approaches to financial and economic issues.

Of course, many of the constitutional protections such as the Contracts Clause, limits on redistribution, limits on federal authority have been read out of the Constitution particularly over the course of the 20th century. And so one potential understanding of why independent expenditures are constitutionally protected could potentially be as a self-defense mechanism. That people who are potentially subject to being targeted in a democratic system at least have the opportunity to present their side of the issue to voters, to try to convince voters don’t vote for the self-declared socialist, don’t vote for people wanting to impose a retroactive wealth tax, and here’s why. So in the face of virtually universal adult citizen suffrage, having the opportunity when you are likely to be the target of these sorts of statutes to at least make your case to the general public at least may arguably be a way of achieving the constitutional values of ensuring the nation is able to exist over the long haul in a way the framers feared many of the states were not. Thank you very much.

Joel Alicea:
Thank you, Professor Morley. I wanted to give all three of you a chance to respond to anything that was said by your co-panelists. There was some direct engagement with each other’s remarks up there. So I want to make sure that you all have a chance, especially you, Professor Lessig, since you went first.

Lawrence Lessig:
Yeah, great. I’m really grateful for the essays and the comments. Let me start with Michael because I feel like I almost agree with everything you said. Although I guess I would frame the ultimate question to be what follows from the uncertainty. I feel like I want to express a kind of Therian originalism, which is, okay, if we’re not certain in the face of the originalism, then we should step back when there’s a democratic branch that’s acting in a way that is questionable from an originalist perspective. And so from that vantage point, all of these questions I think you nicely raise would still lead to the position that we would have more discretion to be regulating in the context than otherwise the court would give us.

Maybe surprisingly, I actually would more strongly defend the conclusion about independent expenditures than I think you were suggesting because I think that we’ve simplified the description of the protection for independent expenditures. The reason Buckley and then Citizens United protected independent expenditures is that they said they were, “There was not coordination.” And the coordination rules, whether they’re enforced effectively or not, are basically a regulation to say, so long as you’re not engaging in a certain way, then you’re allowed to speak in an unlimited way. And if it turns out that Elon Musk was coordinating with the president in an independent expenditure, then he’s subject to penalties for that coordination.

So I think that mechanism of regulation is the reason why it’s not just theoretically independent, it’s practically independent in a way that, at least if there’s an effective enforcement mechanism, distinguishes it from contributions. Because I don’t think there’s any similar parallel in the context of contributions. Brad, so we’ve been arguing since many of you were even cognizant of what was going on, and I have come to love the way in which our relationship has matured to the point where we’re not fighting physically anymore or filing lawsuits against each other. But I do want to make sure that one point’s clear because it feels like in your response, I hadn’t made myself clear.

So when I’m trying to understand the meaning of the word corruption, what I’m starting with is saying, let’s assume we’re going to embrace the Buckley framework. So start with what we both concede as a non-originalist opinion. And then the question is, how do you minimize the judicial discretion in the context of this non-originalist opinion? And if it’s going to frame everything around corruption, all that I’m saying is we ought to at least have a corruption that’s resonating with the kind of concern that is the concern across history, but especially at the framing. I think Michael said this in a way that I completely agree with. I think the framing is filled, not just with particular clauses in the Constitution, but with an obsession on the ways in which governments become corrupted. And to the extent that the rise and fall of the Roman Empire is published at exactly the period of this time, it’s the convincing like the cultural obsession with this concern that the institutions of governance would develop in a way that would lead to corruption.

So I don’t think we can minimize the significance. It’s not like saying we have an Apple Macintosh and what’s the equivalent in 1787, and then how do we bring that back? No, we’re both talking about exactly a similar concern, and I think they were more aggressive in trying to think about how to address it. I think the problem though, the challenge though, is teed up by the Bruen framework precisely. Because in the Bruen framework, I think in its most mature understanding, step one is to ask whether the plain meaning of the right, and of course what we’ve got to mean is the plain meaning they would have given to the right is affected. And then the second step is to look for parallel regulations.

There’s been lots of commentary about the sort of underdetermined character of that way of framing it, especially from the perspective that I’ve started with, which is this kind of Therian originalism because let’s start with the first one. I mean, as Steve commented, the fundamental distinction we’re arguing about in the litigation is the distinction between contributions and expenditures. Our case has nothing to do with expenditures. I’m totally fine conceding the Citizens United point about expenditures. The only question here is contributions to a committee that would make expenditures. And as I think Steve’s comment made, it’s not obvious that that’s exactly within the scope of what the First Amendment right would have been about.

Okay. So we have to get over that point and then we move to stage two and ask what’s the equivalent regulation? Well, what’s clear is they have a wide range of regulation at the time to address the challenge of keeping confidence in a government to make sure that its perception is not that there’s corruption inside of the government. Washington doesn’t treat, but there’s tons of regulations against treating. There’s all sorts of different ways in which the regulatory architecture shifts around at the period.

And the challenge with Bruen is to say, when we move ahead 230 years from that period and the context is radically different, can we point to the fact that they didn’t regulate in the way that we are today wanting to regulate and conclude therefore we are constitutionally prohibited from regulating in that way? Or should we step back from it and say, they had a bunch of regulations aiming to maintain confidence in the integrity of government and they had different contours to them. And are these regulations translations of those? Are they the equivalent of those today?

And again, I don’t think that’s an easy inquiry. It’s easier if you have a Therian perspective to it, but it’s not an easier inquiry if you’re trying to say precisely what the right kind of translation between the two is. And so yes, they didn’t limit contributions to independent committees in 1787, but the idea that they were not concerned to assure they could represent to the public that the right reasons were driving a decision as opposed to a corrupt reason, I don’t think is a fair characterization of where they were.

Joel Alicea:
Professor Smith.

Bradley Smith:
So real quick, if the Buckley court frames it as corruption. So he says, “Well, let’s tether that to some better meaning of corruption back at what were they thinking about corruption at the time?” The Buckley court was thinking of quid pro quo exchanges. They could have said quid pro quo exchanges. They chose a broader term, corruption. I just don’t think that there’s any reason. If you told them, “Well, what we’re going to do then is whatever term you use, we’re going to take it back to the 18th century,” then they wouldn’t have chosen corruption because that’s not what they meant. They meant a narrow category of quid pro quo was problematic.

And so you can start then, as Larry then kind of I think shifts to what were the values at the time. And we should consider that in considering whether you can now do new types of regulation. And I suggest, as I said in my talk, I think the answer to that is no. I think the Constitution embodies a great many values, all kinds of values, right? But it expresses how we are going to protect those through certain provisions.

For example, Justice Breyer has said in some of his opinions on campaign finance when he was on the court, he said, “Well, there’s First Amendment values on both sides, so we shouldn’t be too quick to say that Congress can’t limit these things.” And my response is always, “Well, yeah, we should be really quick to do that because the Constitution says, here’s how we’re going to implement those values. Congress can’t pass any laws in this area. We’re looking for similar things.” So we’re not saying under the Second Amendment they covered flintlocks in 1789, so it only applies to flintlocks now. The Constitution is updated in terms of the meaning of the concepts, the conceptual approaches, but those conceptual approaches don’t change in their fundamental nature. And at the time, the idea that you could just limit political speech was totally off the table.

Joel Alicea:
I have a few specific questions, but Professor Morley, anything that you want to add?

Professor Morley:
No. I agree. I agree with both of you, and I think that’s one of the challenges here. The Constitution embodies multiple values. The Constitution, and again, the purpose, the reasoning behind many of the provisions was anti-corruption. You’ll find plenty of evidence for that throughout the journals and the ratification debates. On the other hand, another purpose of the Constitution was democratic responsiveness. And you see this, and I’m going to skip ahead a decade if you’ll let me. But if you look at the debates over the 12th Amendment, and Ned Foley wrote a whole book on this about how it’s all about ensuring that government officials reflect the will of the majority, that the majority gets to have their will. It really wasn’t, in my view, as framed in expressly majoritarian terms, but more following the will of the people if you look at the founding era debates.

But the point being, you could just as easily say that a constitutional value is ensuring that elected representatives are doing what their constituents want or doing what the people who elected them want, rather than being particularly responsive to certain wealthy individuals that doesn’t necessarily reflect the will of the people, that have their own agendas, that have their own interests. And that’s one of the reasons why purposivist arguments in general are so mushy and subjective, precisely because once you start talking about values, oftentimes there are multiple values in play and oftentimes you can extrapolate from those values to reach different conclusions, which is exactly what I think it leads to the indeterminacy here.

Joel Alicea:
Professor Smith… I have a specific question for each of you, and then we’ll go to the Q&A. But I wonder if your argument that there were no rules, campaign finance regulations at the founding, whether that really just implicates a level of generality issue, which is ubiquitous in constitutional law. But when it comes to historical practices, I think that can be a particular problem. Because it seems like you agree, and Professor Morley agrees, broadly with something that Professor Lessick said, which is there’s a real concern about corruption in general at the founding. There’s a real concern about the political process becoming hijacked, right? That’s a concern at the founding, okay?

They might have done all sorts of things to regulate and prevent that. Apparently they didn’t do campaign finance regulation. Okay. But, and this goes back to our first panel where Professor Campbell, in his historical account of the free speech clause, I think might say, well, but if there’s a general authority to regulate for various legitimate purposes, and one of them was corruption, like fighting corruption. Then the mere fact that they chose not to enact campaign finance regulations at the time can’t be a statement that they didn’t think they had the authority to regulate it because they did have the authority to regulate corruption, to prevent corruption.

And so, why wouldn’t that principle be the relevant principle for thinking through this question from an originalist point of view?

Bradley Smith:
Right. I think about the question. The fact that they didn’t do some type of regulation doesn’t mean they didn’t think they could, they just didn’t see a need for it at the time or just weren’t creative enough. Never occurred to anybody, “Oh, well, why would you stop them from speaking about politics at all, or limit their amount severely, or shorten it way down?” Certainly, that’s true, but then I go back to the fundamental language of the Constitution, which says, “Congress shall make no law abridging the freedom of speech.” Now, again, we know I think that they anticipated exceptions for the traditional common law, exceptions like defamation. Right?

But there’s no evidence that they anticipated anything else. And the fact that they didn’t pass laws and didn’t think about generally saying, “We’re just going to limit the amount of political speech,” suggests it’s evidence that they weren’t favorite. If you’ve got countervailing evidence, great. But if your countervailing evidence consists of nothing more than, “Well, yeah, sure you got evidence, but it’s not 100% conclusive.” Maybe they did think that. I just don’t find that very convincing is what it comes down to. I think we have to look at the evidence that we have and say, “What’s the best interpretation of the Constitution?” And I just don’t think there’s much there that suggests that anybody thought that you could regulate political speech that was not, again, libelous, that was not false advertising, that was not seditious. Even the Alien Sedition Act said, “Got to be seditious.” It didn’t just say any speech about politicians can be limited in its amount.

Joel Alicea:
Professor Lessig, feel free to jump in on that point, but I wanted to put to you an argument that Professor Smith made that I guess I have not heard before, even though it might be very current in campaign finance scholarship. This point that he made about, well, maybe the relevant question here isn’t the free speech clause. Maybe the relevant question here is the time, place, and manner clause, the elections clause. Because if manner means what he says it meant originally, and if this is a provision explicitly about federal ability to regulate elections, then wouldn’t you draw a negative implication that Congress doesn’t have the power to enact campaign finance laws, and so we never even get to the free speech clause issue? What’s your response to that argument?

Lawrence Lessig:
One particular context where that has contrary precedent is in the electors clause cases, which I lost nine to zero in the Supreme Court, where the scope of the state’s power was tied to that same language and that didn’t seem to limit the court from its willingness to see the states having much more power over electors than they otherwise would. I do think that it is true that we have for many years wondered, where does the power, especially to regulate the presidential elections come from given the presidential electors are state structured systems? And why does the federal government have anything power to do that? Why does it have power to regulate voter fraud? Why does it have power to regulate that range of activity?

And so, one might start, and against the earlier comment, the earlier intervention from the first panel suggests, maybe we want to start by just saying you have no power to do anything in this space. I don’t think that the way of reading federal power not to include the ability to protect the institution of representative democracy is compelling. I don’t think that originally it would have been compelling, that they wouldn’t have had any power to protect the integrity of representative democracy. And I think that remains now. And so, to the extent you’re regulating this entity that never really existed before, these things like super PACS. Because you’re concerned about the integrity of representative democracy, I think that fits more in the description you were saying before that this is a kind of thing they have the power to regulate to advance. They didn’t do this particular one because this particular thing never existed before.

Joel Alicea:
And of course, just to add to your point, even if Professor Smith’s argument were right and taken as true for purpose of Congress’s power, you couldn’t avoid the free speech issue entirely because then that would just mean that the states might just step in and start regulating campaign finance for the federal level, federal officers. And the question is, does that violate the future? The Montana case being an example of that.

Professor Morley, I didn’t plan for this, but I thought it was great that we ended up with two views that Buckley has got serious problems, or if not should be done away with but for very different reasons. And then you saying Buckley’s actually fine. It’s great. But what about the challenge to Buckley? Maybe this is a… Let me set this up better. Bruin, this Second Amendment case says there’s a problem with courts analyzing whether the ends that the government is trying to achieve are sufficiently compelling and whether the means are sufficiently tailored. This really does seem illegitimate. It seems like the judges are deciding whether this is an important enough interest for the government. And that does seem at odds with campaign finance laws structure right now, right?

You said you thought that they had basically got it right in Buckley, and it seems like it was because you agree with the analysis about which is more likely to infringe on the freedom of speech, which kind of regulation might be more likely to lead to corruption or not corruption. That’s exactly the kind of reasoning that you see in McCutcheon and Citizens United, and it’s exactly the kind of reason that it seems Bruin doesn’t like. Given that this panel’s about originalism and campaign finance, how do you reconcile this approach to thinking about campaign finance with the concerns expressed in cases like Bruin, if you can at all?

Professor Morley:
I guess I have two responses. The first is with the strong proviso, I am by no means a Second Amendment scholar. My general impression of lower court Second Amendment cases is that Bruin hasn’t been working out very well. That the whole history and tradition approach has led to just as much disagreement, just as much subjectivity, just as much debating over whether particular examples are relevant or not, or close or not. That to the extent this is supposed to provide that external objective discretion limiting standard. At least, again, my impression as not a subject matter expert on it, is that it doesn’t necessarily seem to be doing that great of a job there.

My other bigger picture responses, current constitutional doctrine is a mess, right? Every single provision of the Constitution is interpreted differently. You have some originalist provisions, you have some very non-originalist provisions. You have some provisions where the court says, “We’re going to apply the text very carefully.” You have other provisions where the court says, “We don’t care what the text says. We want to effectuate the underlying purposes beneath the text.” In part, because this is like a chain novel where it’s written at very different points in time by very different justices, applying very different theories. And so, on the one hand, taking one opinion like Buckley v. Vallejo and saying, “Well, this isn’t originalist, and so let’s get rid of it. Let’s hold it to the standard that certain other opinions are.” You wind up with this almost Frankensteinian system then where, well, maybe because you haven’t used originalist reasoning for certain parts of the Constitution, you have to adopt a second-best approach then to other parts to offset it and to keep the system running that maybe your first best solution would be originalism across the board.

Although, I would say particularly, I see possibly some law students in the audience, right?

Professor Morley:

Your constitutional law book is 1,600 pages long, probably cost you $300. If it were a Thayerian constitutional law book, it’d be 20 pages long and it cost you five bucks. None of constitutional law would exist, or at least very, very little of it would exist if we were truly in good faith applying an objectively Thayerian approach.

Professor Morley:
The sort of deference where it’s the legislature’s job to say what the public interest is, it’s Congress’s job to say what’s in the public interest. We are only going to enforce a clear objective. Some states actually report to apply the standard. Some states Supreme Courts say we’re only going to invalidate something under the state constitution if beyond a reasonable doubt, which is a factual standard, not illegal. But putting that aside, if beyond a reasonable doubt, we’re convinced of a violation there.

There’s certainly a big picture conversation to be had about, how should the constitution as a whole be interpreted? But I also think then there’s a real world conversation to be had about, given that we don’t have that best Constitution, are there circumstances where a second-best approach, what might even be an inaccurate approach in the ideal world, should nevertheless be implemented?

Joel Alicea:
Yeah, for sure. When we’re dealing with the topic of free speech originalism, second best is going to loom large in that kind of discussion. Okay, let’s go to questions from the audience. I will ask you to do three things, as I said in the first panel. One, wait for the microphone to get to you. Number two, say your name. And number three, ask a concise question. I will cut you off if you go too long. So, questions. Professor Sachs.

Professor Sachs:
Steve Sachs, with apologies for taking up additional airtime. My question is, what is the role of associational rights here, and where do those come from? Because it seems like a lot of the questions are not about individual expenditures. It’s not Elon Musk literally printing up his own pamphlets and handing them out. But it’s, when can a group of people get together and pool their money in some relevant way? And it seems like that could create the same kinds of concerns. And the First Amendment doesn’t… The assembly right, maybe, John and Ozzie has argued. But I’m just curious of where rights for things like NAACP versus Alabama, or other cases where we’ve recognized the right of people to act in groups together would be understood. It’s coming from.

Lawrence Lessig:
Yeah. I would say the presumption is we could see them as exactly parallel, the associational rights and the free speech rights. And we should see the corruption concern. Now I want to, again, double down on Morley’s, there’s nothing wrong with the basic framework of Buckley’s claim. The same analysis that Buckley would give to the question of whether there’s a corruption interest to be regulated. In the context of ACL Alabama, there’s not a corruption concern there because they’re associating, but not in a way that’s going to underline the integrity of the governmental process. But in the context of super PACS, you might be worried that the association there in the context of creating a dependency inside of an election raises a corruption concern because there’s no non-coordination obligation inside those super PACs the way there is a non-coordination obligation for the independent expenditure.

Whereas the independent expenditure committee can tell its staff, “Do not talk to the campaign. Here’s what you’re not allowed to do to the campaign. This is what we do to make sure we are independent.” When they receive a $10 million check from somebody, they have no way to know exactly how that check related to candidates or campaigns. Right? That’s raising the corruption concern that can be significant enough to override the presumptive First Amendment associational interest.

Bradley Smith:
I wasn’t initially going to say anything here, but then Larry said something that makes me have to say something. Of course there’s a corruption concern in NAACP versus Alabama. The state was extremely concerned that these out of staters were coming in and spending a lot of money to stir up all kinds of trouble and make it impossible to govern their state. The whole problem with this idea of a free floating, anti-broad corruption principle that’s untethered to any language of the Constitution is exactly that. That you’re telling the legislature, whatever you think is corruption, even plausibly, go for it. Especially if we’re not going to allow judicial review of it or truncated judicial review.

Today, I think that most, probably all of us in this room, would not agree with the idea that there was a great fear of corruption in Alabama. But I think the Alabama legislature in 1957, ‘56, and their attorney general truly thought so, that they would have define that the NAACP was corrupt. The NAACP, by the way, was clearly not complying with state corporate law. The NAACP themselves admitted that in the case. This is why I think that, in the bigger picture, it is all part of the same book. And again, we don’t want to be focused on general values. We want to say, what did the Constitution actually say we should do to accomplish the ends and the values that are reflected in the Constitution?

Lawrence Lessig:
Yeah. You’re demonstrating, by using the word corruption in this completely undisciplined way, the point you’re trying to make that corruption can be used in a completely undisciplined way. But I would suggest that Buckley was pretty disciplined about its conception of what it meant by corruption. It meant using money to distort a political process to force politicians to be making decisions on the basis of the money as opposed to on something else. And when they talk about the appearance of corruption, the concern is people look at the system and they can’t help but believe that the reason the decision is being made is the money, not the merits of the decision. That’s what they were talking about in corruption. NAACP doesn’t raise that concern.

Because whatever else you thought was going on in Alabama because of what they were doing, they might have been causing lots of trouble. They might be like trying to lead to create violence maybe. Nobody was suggesting that they were in some way buying off the legislature of Alabama, that’s just not the kind of corruption that they were addressing.

Professor Morley:
Can I push back a little bit on that? I read Buckley differently. I read Buckley as embodying a narrow view of corruption. The court’s explanation, again, as to why independent expenditures in its view don’t raise the risk of corruption, is because if an expenditure is truly independent, then by definition, there’s no interaction with the candidate, there’s no opportunity for a quid pro quo. So, I read Buckley as embodying a quid pro quo conception of corruption.

Having said that, by the time you get to 2003 then, McConnell versus FCC, it is not purporting to overrule Buckley, but it is embracing a much, much broader conception of corruption. Which then, seven years later in Citizens United, the court says ingratiation and access are not corruption. We are going back to Buckley, we’re going to pull out the quid pro quo language from Buckley, and we’re saying constitutionally the only type of cor… And there were other rulings, the National Conservative PAC ruling they were able to draw on as well. But they were saying the only type of corruption that Congress has constitutional authority to target is this quid pro quo corruption.

And so, I think a lot of the debate that you guys are having is pretty much the fight between McConnell, the case, and Citizens United over how broad or narrow is this constitutionalized version of corruption? And as you were talking, the thought that came to my mind is, the whole reason we have a constitutional requirement that congressional districts need to be the same size, right? It would make a lot of sense to me if that came out of the equal protection clause, like one person, one vote, everybody. That’s not where that lives constitutionally. The story the Supreme Court told as to why one person, one vote applies to congressional districts is Article one, Section two. And the court said a story, the House shall be chosen by the people. And therefore, the court read into that this notion that the people should have equal votes, the representatives should be responsible to the people.

They basically baked the concept of fair elections and representativeness into this Article one, Section two concept. And so, again, this goes back to the different provisions of the Constitution have been read in different ways. If you can squeeze equal population districts out of Article one, Section two, then I certainly think you can squeeze fair elections and not being beholden to rich donors out of Article one, Section two. But that just begs the question, how much law do you think is wrong?

Bradley Smith:
And none of those purport to be originalist decisions.

Joel Alicea:
Just very quickly on this before we go to the next question. It does strike me, Professor Sachs, that there’s a similar dynamic here on associational rights as there is on the role of money and speech, right? That money is regulated in a way that affects speech because it is a prerequisite to much speech. And that’s what implicates the free speech clause for campaign finance purposes, going back to Buckley, right? And associational rights, the justification the Supreme Court gives us very similar. It’s a prerequisite to a lot of expression to be able to associate with other people. There’s a Law Review article that has to be written about this at some point about all these things across domains of constitutional law that are not themselves the right, but are prerequisites to the expression of the right.

I think I saw a question back here. Yes.

Audience Member 3:
My name’s Dan Greenberg, I’m from the Cato Institute. I’d like to ask you about an unusual feature of Buckley that I think might be relevant here. When the court issued that decision, it rewrote or remolded the law slightly so as to comport with the Constitution. For example, express advocacy really comes from Buckley rather than coming from the statute that it examined. And sometimes the court has decided that it gets to choose between remolding the law a little bit and just striking the whole thing down.

Another example of this is somewhat famously NFIB versus Sebelius. And what I want to ask you is, does this kind of unusual circumstance and this unusual judicial role cut against the force of originalism in these kinds of cases? Because originalism is supposed to get rid of certain kinds of discretion or discourage certain kinds of discretion. But it looks like Buckley and NFIB really allow for a kind of legitimate judicial discretion, which is not really legitimate generally.

I wonder, does this mean that an originalist critique of Buckley by its nature has relatively little force as compared to other kinds of areas in the law where originalism seems stronger?

Lawrence Lessig:
Well, I think you’re right that there’s a bending recognizing that if they had just thrown the whole thing out it would have been quite dramatic, given what had led to that law being passed initially. But I don’t take the framework of an originalist critique of Buckley to be an originalist critique of a decision that thought of itself as an originalist opinion. An originalist critique of Heller would be a critique of the originalism in Heller. And obviously many people have written extensively about that kind of critique, but Heller thought of itself as an originalist opinion.

As I think Michael said, and I was asserting, they certainly… And this is the one thing all three of us I think are agreeing. They certainly didn’t think of themselves as engaged in that kind of enterprise, because in 1976 nobody really was engaged in that enterprise. Bork had written in ‘71 to tee this thing up, but it still hadn’t become anything. They were running a different enterprise, like Roe versus Wade was running a different enterprise. And then, later cases come along and they say, “Okay, now we’re embracing a certain discipline called originalism, and we are going to evaluate these earlier cases with that discipline in mind.”

I think that’s a fair method, and you’ve got to be committed to originalism to engage in it. But if you’re committed to originalism and you engage in it, it’s a critique of the result, not an originalist critique of the internal structure of what that opinion is.

Joel Alicea:
Well, thank you all for coming to this conference. And please join me in thanking our panelists.

Harvard Law’s Ruth L. Okediji Presents ‘Sacred Art and the Limits of a Secular Public Domain’ at Catholic Law’s Faculty Workshop

Angela Sullivan

February 3, 2026

On January 30, Ruth L. Okediji, the Jeremiah Smith Jr. Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center, presented her forthcoming paper, Sacred Art and the Limits of a Secular Public Domain, at Catholic Law’s Faculty Workshop. The workshop featured a dynamic discussion led by Catholic Law’s Senior Associate Dean for Academic Affairs, Megan La Belle, who served as the designated commentator, alongside other engaged faculty members. Organized by CIT Director J. Joel Alicea, the event was part of an ongoing series fostering scholarly dialogue.

Better Judgment: A Conversation with Author Reynolds Holding Transcript

Angela Sullivan

January 23, 2026

Kevin Walsh:

Welcome. I’m Kevin Walsh, Knights of Columbus Professor of Law and the Catholic Tradition at the Catholic University of America, Columbus School of Law. I’m pleased to host a discussion today with Reynolds Holding, a research scholar at Columbia Law School and the author of Better Judgment: How Three Judges Are Bringing Justice Back to the Courts, which was published earlier this year by University of California Press. This virtual event is being held as part of the Project on Judicial Virtues at the Catholic University of America, Columbus School of Law, which is housed within the Center for the Constitution and the Catholic Intellectual Tradition or CIT. Now, for our CIT events on campus, we typically open with a prayer and let’s do the same for this virtual event. In the name of Father, Son, Holy Spirit. Lead us, Lord, in your path that we may enter into your truth. Glad in our hearts that we may fear your name. Amen.

Well, welcome and thank you for taking the time to talk about your book. I have it here and really enjoyed reading it. Before we get into the book itself, I think it would be helpful if you can describe how this particular book arose out of your day job or jobs.

Reynolds Holding:
Yeah. Well, thanks, Kevin, first of all, for having me on. I really appreciate it. That’s a good question because I had to change my day job just to be able to get this book done. I mean, there are many people who I, or at least I’ve heard of people who have a full-time job and they get up at four in the morning and write for two hours and then go to work. I was pretty clearly that was not going to be something that I was going to be able to do. So at the time the book idea came to me, I was an editor at Reuters and the job now, as you mentioned, I’m a research scholar at Columbia Law School, which gives me a lot more time to write on my own. At the time that I thought of this book, it was shortly after the financial crisis, so 2011, 2012, I was an editor at Reuters.

Reuters, I did a lot of the legal topics. And I remember being in a story meeting in the morning and hearing about this judge in New York, Jed Rakoff, who had gotten a number of the cases involving the banks, the SEC, the Securities and Exchange Commission, was suing banks, Citigroup, Bank of America, others. And Rakoff had a lot of these cases and the SEC would settle these cases fairly quickly and then go to the judge for approval. Rakoff said, “I’m not going to approve these settlements because they’re done on the basis of neither admit nor deny. The bank is not admitting nor denying.” The charges and I don’t know, you’re asking me to approve the settlement on the basis that they’re good for the public in the public interest. If I don’t know what happened, how can I do that? And I remember someone saying, and this was really extraordinary at the time.

It’s extraordinary still. And Rakoff was considered kind of a hero at the time for this. I don’t know if you remember that, but I remember somebody at the story meeting saying, “Somebody should write a book about this.” And I’d always wanted to write a book because as a journalist, I always thought of it as sort of the most accomplished, highest form of thing of writing that I could do. So I thought maybe this is a good topic. In any event, I found out more about Rakoff and I found out he does this sort of thing all the time. This sort of thing being, as one clerk told me, his superpower is to ask why, why should I prove the settlement? Why should I not strike down the death penalty when we know innocent people are being put to death? Which is a totally different story.

But in a number of cases, he’s really known for digging deep and not taking no simple yes or no as an answer without finding what’s behind it. Pretty soon it became clear to me that it had to be broadened beyond Rakoff. So I identified these three other judges that in very different ways do sort of the same thing, really make an effort to dig into the cases, to dig into finding out who the people are that come before them, and also to show that this is not just a unique thing. It’s not just with Rakoff. It applies to a variety of federal district court judges. So I found one in Jackson, Mississippi, a Black man, Carlton Reeves, who grew up in the 1960s and has that whole experience of the civil rights movement and growing up in Yazoo City, Mississippi. And the third judge is Martha Vazquez, who is Mexican American, has that whole immigrant experience.

Her father was an undocumented immigrant. She literally worked in the orange groves of Southern California with her parents as a child, has a very great sensitivity and capacity and understanding for her fellow immigrants. And each of these judges does what I first identified, I think, with Rakoff is really try and find out who the people are who come before you and how to best address their issues. So that’s how it all got started.

Kevin Walsh:
Well, so that explains the three judges, right? The subtitle is How Three Judges Are Bringing Justice Back to the Courts. And on the book cover, you have a kind of series of gavels and there’s three that are different colors. And I suppose that’s because these three judges stood out in some respect and yet you’re also, it seems like you are also telling some broader stories. So part is to tell the stories of these judges as judges. You’re also telling a story in some ways of their times, which are our times, but not all. And then, but the title is Better Judgment and with the subtitle, How Three Judges Are Bringing Justice Back. And of course, since this is part of the project on judicial virtues, I guess I have to ask about, not have to, I’ve been waiting to ask about this better judgment idea, right?

So because you pick judges who are special in some respect, they stand out, and yet they’re also exemplary. And I guess the question is, what character traits does your book, having kind of studied these judges further, learn more about their approach to their job, what character traits does your book end up associating with why some judges exercise better judgment than others?

Reynolds Holding:
Well, the character traits, I think, as each of these judges has, include certainly compassion and real curiosity about the people who come before them and the patience to find out who they are and get to the truth. So certainly compassion, curiosity, patience, and persistence. Look, the backdrop of this book and really sort of the intellectual purpose behind it is beginning just in the aftermath of the Brown v. Board of Education decisions. So in 1956, a bunch of Southern senators came up with the Southern Manifesto, which was in many ways essentially a declaration of war on the courts. I mean, the perception, look, the Supreme Court is going way past its remit. It does not have the constitutional right to make law in desegregating the schools. And this started a period that really lasted up till it’s still going on in a way, of trying to restrict the authority of the courts, trying to use a so called litigation explosion or soft on crime sentencing to take power away from, not only take power away from judges, but restrict the ability of people to get into the court.

So we’re talking about higher pleading standards. We’re talking about sending things to mandatory arbitration. We’re talking about sentencing guidelines. We’re talking about narrowing habeas corpus and on and on and on. And these three judges, and I admire them for doing that, and this is really the biggest reason probably I picked them, is they pushed back against this. They pushed back against restrictions on people’s ability to get into court about, they pushed back on their ability to address the issues that came before them. So I think the most admirable in my mind trait is this ability… I think of it as the desire to do the job. I mean, there’s so much pressure as a result of this restriction of authority and restriction of access, so much pressure to move cases along, to push them into settlement, to not hold trials, to move the docket.

Because I mean, let’s face it, judges are overworked and their dockets are huge and it’s easier to move along the cases. And these are three judges that don’t certainly in an extraordinary way don’t do that, are willing to take the time to do, and this is what I mean by bringing justice back to the courts, the desire to actually get into the cases, to find out who the people are that come before them. And in my mind, that’s doing justice. It’s not a particular result. It’s not liberal, it’s not conservative, it’s just doing the work and getting to a result that the judge and the parties believe is fair, at least in some sense, and that they’ve been heard, that their case has been heard. So I think that’s what I think of as the characters.

Kevin Walsh:
Thank you. That’s clarifying. As you were talking, I was thinking about the judicial oath, right? Because sometimes judges will say, “Well, I just apply the law.” So what you’re talking about is personal judgment, personal characteristics, and my job is just to apply the law. And a lot of times when I hear that, I think, “Well, your job is defined by your oath and your oath says you will administer justice without respect to persons, you will do equal right to poor and rich and you will apply the law, constitution laws faithfully to the duties of your office.” So I do think this self-understanding of judges matters to their understanding of what the job is. Now, there is though a sense in which this is countercultural, an idea of judgment because you can have… One thing that’s bad in our culture is being judgmental, right? Who are you to judge? Who am I to judge? We don’t have that problem as much with judges because that’s their job.

Reynolds Holding:
That’s their job.

Kevin Walsh:
But then on the other side, it’s, well, that job is just applying the law. Now, how does your book respond or having articulated the judges doing their job and described and say, “How do I convey this in a book?” What’s the answer or what are some things from your book that would say, “Well, it isn’t just applying the law,” or, “Here’s what’s involved in applying the law,” that we can fill in this job description.

Reynolds Holding:
Yeah. Well, I mean, let’s be clear, their job is to interpret and apply the law, and none of these justice judges would disagree with that. I mean, these are not judges that sort of go off the rails and do what they want to do because they think it’s the right thing to do. I mean, these are judges that are very smart and very committed to the law, but the law probably is usually not necessarily clear in a given circumstance with given facts. And there’s a lot the law just doesn’t address. We’re talking fairly, even when in specific laws, I mean, you always get the sense that there are broad principles that come into play. Certain facts, certain circumstances, certain people that make applying the law not so easy.

I mean, for example, you talk about money, the rich and the poor, and that’s certainly in the judicial oath and certainly the obligation of the judge is essentially to treat them, is to give them equal, I’m not sure what the words are, but to consider them on an equal basis. But that doesn’t mean that they are equal. I mean, certainly the experiences of someone without much money is different from someone who’s very wealthy. Certainly, their experiences are different, their needs are different. I mean, it’s part of who they are at the point when they come into court. And I think Judge Vazquez, Martha Vazquez, in Santa Fe, New Mexico is particularly cognizant of this. I mean, she lives in a… New Mexico is a very poor state. It has a lot of immigrants. It’s very near the Indian reservations, the Navajo nations, the Navajo Nation, a number of Pueblos.

And she really recognizes that these people, I mean, in some cases, for example, Natives, federal court is a very foreign experience to them. I mean, there’s no federal court near them. She made great efforts that we can talk about, if you want, to bring her court to them because she recognizes that they need this. And so there’s so much more involved than just the law. I mean, Jed Rakoff, he does a lot of cases involving Wall Street, involving large banks, large firms, large companies. And he recognizes that punishing a company is often ineffective because it’s a cost of doing business if they have to pay a fine or whatever it is.

Even if it’s what we would think of as an enormous fund, but he recognizes that it’s not companies that do things or that do wrong. It’s people. And he presses very hard in every case, “Well, don’t tell me the company did this. Who at the company did this? Who at the company is responsible?” So the law, as it applies to a corporation say, is often not enough in his mind if you don’t identify the people who are running the corporation and responsible for its behavior. So yeah, I mean, they have to follow the law and they know that, but the law is not clear in every circumstance. And so it requires… These are people. It requires, as it would require anyone, personal judgment, and everyone has an ideology. I mean, let’s admit that too. And different people are going to have different judgments and different conceptions of what’s right and wrong. So that’s, I know I’ve been kind of going on and on.

Kevin Walsh:
Well, it’s-

Reynolds Holding:
That’s how I think about it.

Kevin Walsh:
Yeah. And it’s interesting to think too as how you pick which cases to talk about. There’s a mixture of ones that are very fact specific and ones that are law specific. One of the things that I think there’s one, at least for all three judges, involves sentencing. Sentencing is one where the law is more open textured in the sense that they’re explicitly, they’re given a list of factors that need to be considered and it would be error to kind of bypass the factors, but the way those factors go, there’s not a sort of algorithm for that. And so it will be fact sensitive. I wonder, let’s go to a sentencing case by Judge Vazquez that you talk about. This one, and one of the reasons I like it is because the lawyer who is a federal public defender, I believe, plays a big role in this.

And so this, and you, of course, have already told the story better and can tell better than I can, but the gist of it, as I take away, is that someone went on what you might call a bender high on drugs, and there were multiple robberies that took place, and this triggered the Armed Career Criminal Act, which kind of defines separate occasions. And in some ways, this lawyer was able to develop a theory tying to the facts that said, “Well, this, what I call a bender, that maybe minimized a lot,” but just to convey that basically like what seemed like-

Reynolds Holding:
Yes, an extreme bender.

Kevin Walsh:
That seemed like multiple different occasions, at least for purposes of the Armed Career Criminal Act ought to be viewed as one occasion. And one of the interesting things about the way you describe the interaction between this lawyer and Judge Vazquez is that the judge, in some ways, invited this kind of argument and was receptive to it even while acknowledging that perhaps the 10th circuit, which had appellate jurisdiction, might reverse it. And I believe this one was reversed at first, ultimately vindicated because there was an intervening Supreme Court decision by the time, what, of the second re-sentencing? And I’m just wondering if you could take that case and talk a little bit about this relationship between the law and the facts and judicial judgment when it comes to kind of controlling precedent, but precedent that is interpreting perhaps something that might be subject to a different interpretation and kind of what it means to be faithful to the law and to do justice in a circumstance like that.

Reynolds Holding:
Yeah. Well, each judge I write about said to me, “Sentencing is the hardest thing that they do.” It’s the most important thing that they do because you’re in a position to ruin someone’s life in effect. And so they take it very seriously. I mean, as you know, during the period of the sentencing guidelines, when they were mandatory from the late 80s until what, 2004, when they became advisory, judges hated that because it was, if not an algorithm, it was a formula. You plug in this and that and the other thing, and the formula spits out a sentence, and you have to abide by that sentence. And for example, you mentioned the Armed Career Criminal Act, which is a mandatory sentence of 15 years, excuse me, I think it may still be. So the case you refer to involving this guy, Marc Dutch, who had a terrible, terrible childhood, terrible… His father would literally force him to drink beer with him, would force him to go out and buy cocaine, would force him into all this sort of horrific behavior.

And of course, Marc Dutch became an addict and ran into very hard times and committed crimes. And a very hard and in some ways, I mean, some people will say, “Well, he’s just a bad guy.” But in Martha Vazquez’s mind, this is a guy who had real, not even because of his own fault, a real problem, real problems in life, but it’s a tough case. I mean, it’s not obvious to me that Martha Vazquez did the right thing. I mean, ultimately she wins, so to speak, but she was so struck by what a hard life that this person has, as she is by many of the people who come before her, that sure, she was predisposed to not throw this person away like garbage, which is something she often says. “My job is not to throw people away like garbage. My job is to give them opportunities to heal, to become a productive member of the middle class in America, which is so important to democracy, and I believe this guy may have potential to heal.”

Now, this guy had a great lawyer who was creative and found ways, as you pointed out, to try and interpret the law so that this guy didn’t get a mandatory 15-year sentence. And initially Judge Vazquez says, “Look, I may agree with you, but there’s nothing I can do.” This is mandatory, but he presented a way that she could interpret the law so she was able not to give him a mandatory sentence.

Excuse me. The prosecutor’s appeal went up to 10th Circuit. 10th circuit says, “No, no, no, no. The law’s clear You got to sentence him.” Came back to her. She said, again, Dutch’s lawyer argued before her. And again, she said, “There’s nothing I can do.” But again, he persuaded her. This went on, I think it went up three times to the court of appeal.

Kevin Walsh:
And then in the meantime, by the time it gets to the end, the Supreme Court has essentially this issue and I believe it was a unanimous opinion defining occasion and saying that if it’s the same series that that may be, and of course it’ll be fact sensitive, but then the lawyer’s job is to make it seem as if this defendant’s case is similar enough to that one.

Reynolds Holding:
Yeah. And I should point out, I mean, the three, the prosecutors, their records of what had actually happened was not good.

Kevin Walsh:
Well, it does seem as if the interplay of governing precedent and then the facts of a case and the words of a statute, it’s going to be hard to generalize about for any given case. There is a case that you feature in talking about Judge Rakoff that I think it’s worth talking a little bit about. And this involves the insider trading laws. And the setup here is that the Second Circuit, which is the appellate court that reviews Judge Rakoff’s decisions when he’s in his New York District Court, the Second Circuit had given an interpretation to the insider trading laws that made it harder to show insider trading under certain circumstances involving gain to… Well, you’ll be able to explain it, but the short version is he was sitting by designation on the Ninth Circuit because this happens. Judges can sit by designation on courts of appeals and he ended up with the opinion for a Ninth Circuit panel that really was addressed, should we follow the Second Circuit’s opinion or not?

So here he had in some ways an option that he doesn’t have as a district court judge hierarchically inferior to the Second Circuit. Now, he’s on an equal level and he was able to write an opinion that says, “We’re not going to follow the Second Circuit. Here’s why.” And then that issue went up to the Supreme Court and I’m just wondering, and the Supreme Court followed his opinion or his interpretation of the Supreme Court’s precedent. And this was a sort of big case, even included in your book, Judge Rakoff’s wife calls him and says something like, “Good job.” And I wonder if you could address what that episode, what lessons might be drawn from the binding nature of precedent and how judges can interact with that at different levels and what sorts of freedom they do and don’t have as district court judges compared as appellate court judges.

Reynolds Holding:
Yeah. Well, Rakoff is unusual in this respect. Several times in his career, he has found a way within the law as he sought to buck against precedent. Most famously, he did it in striking down the federal death penalty. He read a Supreme Court case in a way that he thought he could find a majority for the proposition that it would be unconstitutional to put an innocent person to death. And he said, “Look, we know from DNA testing and the Innocence Project that it’s happening, that there are innocent, if not innocent, but not guilty people on death row.” And that was, shall we say, audacious. In this particular case, in his defense, the law was pretty clear that the Second Circuit just got it wrong. I mean, without going too much into the details, insider training, when the insider gives a tip to an outsider, there has to be some evidence of a benefit to the insider.

The Second Circuit said, “Yeah, it’s not only a benefit, there has to be actually a payment, something of value, a payment essentially, which was far too narrow than any other court had interpreted.” And in any case, so Rakoff gets to the Ninth Circuit, and of course the defendant says, “Hey, under the Second Circuit’s definition, I’m not guilty because it was my brother, but there was no money that changed hand or the tip went to my brother, so I can’t be guilty.” Now the full, in fairness as well, the full three judge panel believed that Rakoff’s view was correct and it was a unanimous decision. Now, here’s where I think it was at best in politic, Rakoff wrote the opinion. He didn’t have to write that opinion. He didn’t have to stick his finger in the eye, so to speak, of the Second Circuit judges. And I know that the judges on the Second Circuit were not happy with that.

And it could have easily happened that another judge wrote the opinion and Rakoff joined it, but he found himself in a circumstance that really put him on an equal footing with his bosses. And just to show how clear the law was, the Supreme Court was unanimous in agreeing with Rakoff’s point of view. I mean, that’s one. So Rakoff is freer than most judges, I think, certainly freer than most judges in his willingness to challenge precedent if he believes it’s supportable in the law, by the law. Carlton Reeves is another, he deals with precedent in a different way. I mean, his opinions are just incredibly elegant and persuasive and draw deeply on history. And his approach is to say, look, here’s what the law is. Law is qualified immunity. A police officer has qualified immunity. You can’t sue that police officer in almost any circumstance for violating the law or the constitution.

And Reese will go through in his written opinion to explain how that law came to be and why it’s wrong. And in one particular opinion, the Jamieson opinion, he said he addressed the Supreme Court directly and said, “Look, I can’t change this, but you really should change this.” And he’s not just writing for lawyers, he’s writing… I mean, this was picked up by journalists. It was a fairly big story in the legal journalism world. And actually in a later case, he did find for the plaintiff the liability of the police officer and did override qualified immunity. Martha Vazquez approaches us in a different way. I mean, she, again, is extraordinary, particularly on sentencing. I mean, that’s where she becomes really intent on doing what she believes is the right thing given the people that come before her. But she’s also, as the records show… Well, she appreciates, I mean, you talk about the relationship with the district court judge, between the district court judge and the court of appeals, she has great respect for the court of appeals from her case, the 10th circuit.

She tells a story of becoming a judge for… She’s a new judge. She gets a case. Her background was as a public defender. She gets a criminal case. The defendant’s lawyers essentially move to dismiss the case after a certain period of the trial. And she declines, even though she knows the evidence, she really thinks the evidence is not… The prosecutors have not really proven the guilt of the defendant, but she’s worried that her background as a public defender is making her biased, and maybe she should just let the case play out, which it does, the defendant is convicted, appealed to the defense circuit and said, “This case should have been dismissed.” In other words, she was so… And she says, she said, “I’m so glad to have that check on me above because I know sometimes I just get it wrong.” And that’s the example she likes to talk about. So there’s tension, but there’s also appreciation that there’s another level that will fix a mistake.

Kevin Walsh:
Well, and one of the tensions that I’m hearing is the particular case, right? So you talk about bringing justice back to the court, the particular case, and then the state of the law, right? So you mentioned the qualified immunity case, Jameson, Jameson versus McClendon, and the facts of that case really are what you used to open up the book and it involved the stop of a black motorist and his car was searched in violation of the Fourth Amendment. And as qualified immunity works, as you explain in the book, is that the court has the option to decide what exactly they’re going to decide. It used to be that they first had to decide was there a constitutional violation and then the second step was, was the law showing this was a constitutional violation, was it clearly established so that a police officer kind of should have known?

Reynolds Holding:
Right. Would a reasonable police officer have known that what he did was wrong, I think is essentially the standard.

Kevin Walsh:
Right. So you had those two things. Was it a violation and was the law clearly established? And then the Supreme Court said, “Well, you don’t have to follow a sequence. You can assume there was a violation. If the law wasn’t clearly established, then there can be summary judgment or dismissal against the plaintiff depending or it’s a question of law. Was it clearly established?” So in this case, Judge Reeves though first kind of went in and said there was a Fourth Amendment violation and then concluded, but the law wasn’t clearly established.
And as you say, he did a lot more than a judge often does, a district court judge, often does in terms of explaining and criticizing qualified immunity. And I suppose though, how is that bringing justice back to the courts? I can see that that is, if we think about doing case-specific justice and helping the law develop in a different way, and thinking of those in some ways as intention sometimes, and because from the point of view of the plaintiff whose case is dismissed, if they had a legitimate violation and they should have received a remedy, well, what do they care about the development of the law overall?

Reynolds Holding:
Sure. Well, what I think they do care about, and again, this is my conception, this is what I mean by doing justice. I mean, I never unfortunately was able to speak with the plaintiff, although I tried very hard. I did speak with his lawyer and he came away feeling he had been heard. His case had been not just considered, but deeply considered. And that the person hearing it said in effect, “I understand what happened. I understand what you’re saying. I actually agree with you. My hands are tied. And look, here’s what I’m going to do. I’m going to explain that in a very, not just accessible, but compelling way in my opinion. And I’m not just speaking to lawyers. I’m speaking to the public.” I mean, that decision, as I mentioned, was written about quite widely in the press. It really galvanized an effort which is still going on to try and change the rules, to try and get rid of qualified immunity.
I mean, it’s become a big issue. I think this opinion had at least something to do with that and the attention that it got. So yeah, I think the plaintiff… I mean, again, by my definition of doing justice, I think the plaintiff felt that he got justice. He was heard and he was heard deeply and persuasively. And I’m sure that meant something to him.

Kevin Walsh:
Well, there can be a tension not just between the litigants and the court in terms of their particular case and the development of the law. This also can occur in movement lawyering, for example, where the lawyers might have some state of the law that they’re trying to reach and the plaintiff’s claim in some ways is a vehicle for that. So this is certainly, this is a complicated aspect of the relationship between law and justice. I wonder if we might look at it from the point of view then of the appellate courts. So there’s always going to be some tension between the people who are kind of on the front lines and then people sometimes that are kind of serving as a backstop or a check or… The kinds of cases that get appealed are only the ones typically where the lawyers think it’s worth having another look.

And that’s even more so when it comes to the Supreme Court of the United States. Generally, it’s true that they don’t engage in fact-bound error correction. However, the numbers show that of the small set of cases that they grant, it’s a very high proportion of those. I want to say two-thirds to 70% of those lately will end in reversals of then the appellate courts. And what do appellate courts owe the district court judges? So kind of look at it from the point of view, the judges you looked at, what do they appreciate from the appellate courts and what don’t they appreciate from the appellate courts?

Reynolds Holding:
Well, believe it or not, I’ve spoken to some court of appeals judges and I spoke to quite a number of them and a significant number appreciate being pushed from below. There are certain circumstances where reality has sort of moved beyond the law. I think qualified immunity is one example, I think. Perhaps the death penalty is another example. Those are big examples. I mean, there are much smaller examples, I mean, everyday examples where it just doesn’t… And I’m really sort of channeling Rakoff here because I know he believes this and he believes in… He says, “Look, this used to be the way the law was in the common law, you developed it below and pushed from below.” And some appellate court judges appreciate that and recognize that this is the way the law changes. I think others get annoyed. I mean, the case that we talked about with Judge Vazquez, the 10th Circuit, I think it’s fair to say the 10th circuit judges were annoyed that this case kept coming back to it when it was so clearly in their mind a loser from the point of view of the defendant.

And I think my point being that I think it’s a mixed reaction. I mean, some people resent district court judges when they seem to be going beyond the law, other peoples welcome it as a way as forcing them to think through the law and perhaps to agree that there is a way even within the law to create some room, so to speak. I mean, I will also point out that, as you know, I mean, the vast majority, hundreds of thousands of cases that district judges decide every year never go up on appeal. I mean, the federal district courts justice are the last word in those cases. And I think as I point out in my mind, they do the real work of the federal judiciary. I mean, those cases never come close to getting to the Supreme Court. And that was going back to why I wrote this book.
I mean, so many people talk about, write about, worry about what the Supreme Court does. And I wanted to bring forth what the people who do the real work of the judiciary, the Federal District Court judges do. What do they do? Who are they? What goes on in their chambers? How do they make decisions? Because they are the last word in the vast majority of cases.

And I’m sure the appeals court judges appreciate that and respect the fact finding purpose of the trial court judge. And it’s always a question, do they adhere to the rule that they’re not fact finders, the appellate court judges? I mean, how much do they find excuses to sort of get into the facts and change the decision on the basis of different facts? But that’s another topic.

Kevin Walsh:
Well, we have just a little bit more time. I had one question that sort of prompted by that is it’s about the audience for the book. So I’ve been asking questions that are kind of like typical law professor kind of things, but it does seem that one audience for the book is an audience that is impatient with the judiciary, particularly in relation to democracy. So you talk about the relationship between justice and democracy, and one of the claims, and this is early in the book, sort of a theme in some ways of the book, is how judges can advance democracy. And you talk about particular things that you mean by democracy. And I guess how does that theme fit into the work of judges, right? I take it the judges shouldn’t self-consciously be thinking my goal is to advance democracy, but rather your claim is somehow that by administering justice faithfully in their cases, they are also advancing democracy in a way that answers or speaks to the concerns of some audience that you have in mind for this book.

And I’m wondering who that audience is and how to connect or how to describe that connection between justice and democracy that you talk about.

Reynolds Holding:
Yeah. Well, I like to retreat into the fiction. Hey, I’m just trying to tell a good story here. It’s like these big concepts are not really what I’m illuminating, but I think that’s… I like to think actually that I am illuminating to some extent. But the audience, I mean, I think to look at it, I mean, since we’re talking about democracy, let’s talk a little bit about politics and politician. I mean, there’s a, and I hate using these terms, but on the right among conservatives, there’s a tradition and still a strong feeling backing judicial restraint. Judges are not Democratic. They are too often activists. We can’t have an individual who is blocking economic development by corporations that’s penalized. The essential argument for judicial restraint on the right. But even on the left now, among Democrats, among the people that… The book that I cite for their conception of democracy, there’s a feeling that, look, judges are undemocratic.

We should be relying… We on the left got used to relying on the Warren Court, the Supreme Court under Earl Warren, to get to the policy results that we wanted. Well, we can’t do that anymore. And furthermore, we shouldn’t have ever done that because the real democratic branch of government is Congress and to some extent, the president, the executive. So we really ought to do things like impose term limits on judges. We ought to do things like take away some of their jurisdiction in to decide certain cases. And so I think it’s important to point out, look, I mean, to state, I think what is obvious, I mean, is Congress really doing its job now? Is the president really doing his job? Should we be relying on… I mean, in my mind, we’re left with judges and particularly district court judges to protect what I see as democracy, our democratic system.

So I want to make that point that judges can be good for democracy. I mean, you have Jed Rakoff in New York who deals with a lot of Wall Street and a lot of corporations, a lot of firms on Wall Street, which have been accused, I think correctly, as developing a sort of oligarchy. And his feeling is that it’s too easy for these institutions and these people who run these institutions to get away with wrongdoing, to not be held responsible, to view fines and judgments as a cost of doing business. And he just wants to make sure that… I mean, I don’t think he thinks of it this way because he doesn’t have any particular animosity towards against CEOs or heads of investment banks, but he thinks that too often these people are not held accountable in the way that they should, that everyone else is held accountable for the wrongdoing.

Judge Reeves, he’s very cognizant, and he does do this intentionally, that he wants people of all ethnicities, racist, genders, to be able to get what he believes is justice, to be able to come into his court and be heard. He loves to say, “You will be heard.” And that helps build inclusiveness, brings people into what he sees as a democratic system. And then Martha Vazquez in Santa Fe, she deals with a lot of very poor troubled people who have potential to be productive economically, as well as in other ways. And she very much concentrates on making sure these people are not thrown away, that they’re not treated like garbage, their lives are not just thrown away when there’s real potential that they can become with her help and with the help of people that of organizations see often sentence them to treatment in, can become productive members of, as I think of it, the middle class, to live lives of value.

So I guess in answer to your question, my audience for that argument is people on both the right and the left who believe judges should have less power because they’re undemocratic. And my argument is no, they can be very democratic. I mean, the court is the one place people can go to have the facts come out, proven facts, to find out what really happened and what the problems in society really are. And in that sense, also, it’s a democratic forum. So that’s what I would say.

Kevin Walsh:
In listening to those reflections, there is a quasi-Brandeisian feel, right? To some of it. And yet in his time, that a lot of what he was doing was limiting the role of federal courts in particular to interfere as he viewed it and Frankfurter with so called progressive legislation. So it is interesting to think how, and yet at the same time, he was a Brandeis brief and the facts matter and in some ways they speak for themselves. And it’s interesting to reflect how kind of judicial ideals are refracted in different circumstances. I think maybe my last question for you is this, and it comes from the end of your book where you end with a quotation from Judge Reeves, and he’s speaking, I believe, at UVA, his alma mater, and the quotation is this, “To fulfill the constitution’s promise to establish justice, we the people need to defend the judiciary.” That’s the quote.

And of course, as your book, it also demonstrates we need to criticize the judiciary and in some ways your discussion of your audience kind of keeps in mind that the judiciary needs defending in different ways. Do you come away from this believing that there are criteria that in some ways can transcend politics, can transcend a left-right divide, by which we can criticize or defend the judiciary?

And in particular, I’d say what would be criterion for defending the judiciary? Because so often, and as you know, particularly from a journalistic side of criticizing and reporting, rather than writing a book about it, doing all the work and writing the book, it’s easy to despair of politics kind of being subordinated to the rule of law. So are there criteria by which we should defend the judiciary?

Reynolds Holding:
Well, I mean, there are sort of the obvious things. I mean, we should not threaten judges and commit personal violence against judges and go to their houses or send pizza to their houses saying essentially, “I know where you live.” I mean, that’s a terrible problem has always existed, but I don’t know that it’s ever existed to this degree. And I think another obvious problem is the way that so many people in Congress, in the White House, attack judges. I mean, not on the basis of really anything. I mean, there was our Deputy Attorney General, Todd Blantz, not long ago, got up in front of the Federalist Society and said, “We’re at war. We’re at war with federal judges,” which was a terrible thing to say, but in their mind, he’s not wrong. And I just don’t think that has any place in our country, in the public discussion.

And as I say, it goes on in Congress, it goes on from the White House, and people are persuaded that I think a lot of people are persuaded that they should not trust judges. They should not believe, they lose faith in the ability of our judicial system to do justice, to address their problems in a fair way. I mean, what are the criteria for criticizing judges? I mean, obviously you can criticize… I think you need, if you’re going to criticize a judge, criticize the judge’s decision on the law. I mean, they’re trying to apply the law for the most part. I mean, I can think of at least a couple of judges that seem to be playing politics more than applying the law. And that’s always the answer. I mean, that’s always the valid criticism. But this idea that we’re at war with judges because they have done wrong without saying, “Well, what have they done wrong?” I mean, listen, the criticism is largely, as you know, federal district court judges are striking down in some sense these executive orders from the president and they’re not going off the reservation.

They’re not being creative. They’re applying the law and they make that clear because they’re coming out with 60, 70, 80, 100 page opinions that say, “Look, here’s what the law says.” And under the law, this executive order is illegal or is unconstitutional or whatever the basis for it is. And if they’re wrong, then sure, criticize how they’re wrong under the law, but don’t just say they’re a big problem and not say anything. And I haven’t heard anything from many of these people about what these judges are doing wrong. I think anything more than that, I think it’s fairly clear how you should criticize a judge, not with violence, not in a public forum, threatening them, but saying that these judges are wrong, here’s why. Here’s specifically why.

Kevin Walsh:
Well, one of the virtues of this book is to bring out the humanity of the process and all involved, right? That is what happens in part of our nature is, well, we don’t just follow the law, but this is what we need to do is to… This is absolutely essential that the judiciary be there to establish justice, that verb established, I always think is interesting in the Constitution, right? It should be something that you can count on and that there is a place. So thank you.

Reynolds Holding:
Yeah, consistency. I mean, we have to know what’s right and wrong. We have to know what’s legal and illegal. We have to know what to do and what not to do. And including the three judges, I mean, judges do get it wrong. I mean, Rakoff has gotten it wrong. Reeves has gotten it wrong. Vazquez has gotten it wrong and appellate courts have told them so. But I think what they’re trying to do, which is to do the job, as I put it, is quite admirable.

Kevin Walsh:
Well, the book, again, is Better Judgment: How Three Judges Are Bringing Justice Back to the Courts. And thank you for your time and your insight into the judicial virtues.

Reynolds Holding:
Well, thanks so much for having me, Kevin. Thank you again. It was fun. I’m glad to do it.

Kevin Walsh:
Thank you.

Judges, Judging, and Judgment: A Conversation with Author Chad Oldfather Transcript

Angela Sullivan

January 16, 2026

Kevin Walsh:
I’m Kevin Walsh, Knights of Columbus professor of law and the Catholic tradition at the Catholic University of America’s Columbus School of Law. I’m pleased to host a discussion today with Professor Chad Oldfather, professor of law at the Marquette University School of Law. I encourage you to visit his faculty bio at the Marquette Law website to get a sense of his professional accomplishments and personal outlook, I cannot do it justice but I thought I’d ask Professor Oldfather at least to vouch for its truthfulness. Is everything on that bio true?

Chad Oldfather:
Everything is true including the quote I attribute to my mother.

Kevin Walsh:
Yes, yes. So, you’ll have to go look that up but I thought it was very lawyerly of you to give a statement of fact or, I don’t know, it’s a statement but to attribute the authority so that someone who is judging that can decide based on the authority and every mother is an authority on the handsomeness of her son-

Chad Oldfather:
Indeed.

Kevin Walsh:
… so this is good. Well, Professor Oldfather is the author of many scholarly publications including the book we are here to discuss today, Judges, Judging and Judgment: Character, Wisdom and Humility in a Polarized World. This discussion’s being held as part of the project on judicial virtues at the Columbus School of Law which is housed within the Center for the Constitution and the Catholic Intellectual Tradition or CIT. So, for our CIT events, we typically open with a prayer and let’s do the same for this virtual event.
Father, Son, Holy Spirit. Lead us, Lord, in Your path that we may enter into Your truth. Glad in our hearts that we may fear Your name. Amen. Father, Son, Holy Spirit.
Okay. Well, this book Judges, Judging and Judgment, how did it come about? How did it grow out of your day job? I didn’t go into all the things on your bio but I thought that this … How did this book come about?

Chad Oldfather:
Sure. Like a lot of things, the path was more meandering, at least in retrospect, than one might think but I think … So, I’ve been at this, teaching law for two decades plus at this point and most of the scholarly work I’ve done over that time has been in some way tied to think about it as judicial decision making, judicial behavior, something along those lines. And meanwhile, for most of that time, I’ve taught a class called Judging and the Judicial Process that has taken a number of forms. It began as a seminar and, as true of a lot of seminars, was really meant as a way to augment, in some ways, my scholarly interests.
So, the mission was really to study courts and judges and judicial institutions and processes from, really, every perspective I could come up with and really from start to finish starting with what is it that courts are for, what functions are courts designed to serve, what roles do they serve, what might the ideal of judicial behavior look like, what are some of the features of human nature and human institutions in the world that we live in more generally that keep us from realizing that ideal, how does the system try to account for those very human shortcomings via process, via method, via institutional design and so forth.
And fairly early on, after a few years of teaching the class, I had this idea that, all right, I was compiling this broad array of materials from a lot of different disciplines, law certainly but also psychology, political science, economics, philosophy, and that I wanted to publish it. And I was initially thinking in the nature of a treatise-like publication but other projects kept coming up, my attention was drawn elsewhere and, meanwhile, as I’d kept teaching the class, I developed this sense that, really, the most important part of the equation wasn’t so much the what or the how as it was the who. Meaning, if we don’t have the right person with the right characteristics and habits of mind in the role, none of the rest of it really matters, that there’s a certain fundamental expectation of what judges are supposed to bring to their role that maybe matters most of all.
So, I finally had a thesis, I guess, an organizing principle for all of this and then the stars lined up in the sense that I got asked to teach that class in both the spring and fall semesters of a single calendar year, that fall semester was a bit of a switch up and it led to some opening up of time in the summer in between them and I thought, all right, now’s the time. I’m going to put together a book proposal, I did it, it got accepted and this is what resulted from it. So, it’s one of those stories of a long-planned thing, finally through happenstance, actually coming to be.

Kevin Walsh:
Well, that is wonderful. What was the name or what is the name of the course or has it changed over time as you’ve done it? So, the book is Judges, Judging and Judgment, that really captures the who, right-

Chad Oldfather:
Right.

Kevin Walsh:
… and the activity of judging and the judgment as a this is what judges need is judgment but I’m guessing that’s not the name of the course.

Chad Oldfather:
Right. The course is Judging and the Judicial Process which, at this point, there’s just inertia associated with it, that’s how it’s in the course catalog and I suppose I could change it but I really do range a little bit beyond the book. This past semester was the first time I taught the class using this book as the primary source material, we covered some other things as well along the way by way of supplementation but it served well, honestly, and I don’t know what to attribute this to but it was one of the best semesters I’ve ever had teaching just in terms of enthusiastic class participation and so forth. And it was a Monday, Wednesday at 3:30 class of upper class students and my thinking is, oh, that’s not a good time of day to get energetic class participation and they were wonderful so fingers crossed that it happens again.

Kevin Walsh:
Well, I know we’re to talk about your book but now I’m intrigued as a fellow law professor here, how do you grade a course that’s based on this book? And maybe that’ll give us a chance because some of the things about, say, virtues, for example, there’s aspects that can be taught, there’s aspects that are acquired but, of course, I doubt that you are measuring students for their progress in virtue over time. There’s a certain amount of knowledge, I imagine you need some intellectual virtues to thrive in this class but, from a law student, law professor relationship that’s in the end mediated by grades, how do you … What are your teaching goals and how’s that then reflected in the assessment?

Chad Oldfather:
Yeah, no, it’s a great question and it’s definitely not a traditional law school exam, there are no issue spotters on this one and I’ve changed that over the years. When it was a seminar, of course, it involved a more traditional paper requirement and then, as it changed from a seminar into what we call a general enrollment class with an exam, it’s become more of what I would characterize as the classic liberal arts college exam in some respects where I used to … And I used to encourage students to, I suppose, call it have a take and sometimes I would find a somewhat provocative quote usually from some judge writing extra judicially, occasionally from an opinion and invite them to react, drawing upon the materials that we covered in class, tell me what you think, whether you like it, you don’t like it, whatever.
And it’s still a lot along those lines, some of it is just designed to be tell me what, tell me that you understood some basic concepts here. We’ve covered a lot of fundamental concepts in law across these various disciplines, just tell me that you’ve internalized those ideas and then there’s still space for the take having. And I do hate being restricted to the curve when it comes to grading these things because it does feel like a little bit contrary to the spirit of the class in some ways but there’s not much I can do about that, unfortunately.

Kevin Walsh:
Well, I’d have to guess that some of your provocative quotes would come from Oliver Wendell Holmes, Jr. perhaps or Richard Posner, those would be the ones where I go to for a react kind of thing. Although I suppose you could have … One of the quotes I’m most interested in by John Marshall is where he says the judicial power has no existence, that it just … We have no will and that doesn’t seem right to me but it does seem like the kind of thing that could draw forth an interesting reflection or set of reflections from students given what you cover in the book.

Chad Oldfather:
Yeah, yeah, no, and there’s no shortage of quotes and I’m sure I’ve drawn on Holmes and I’m sure I’ve drawn on Posner from time to time, not Marshall. I’ve also found … You’ll find these collections of … A couple years ago, I found a book called Blindfolds Off, I don’t remember who put it together but it’s this series of interviews of federal district judges about their decision making and attempting to get them to open up and be candid about what all goes into their processes. And you do find in there sometimes judges talking often in the context of deciding specific cases, making these statements that are like, “Oh, that’s interesting and that’s worthy of some thought, let me put it out there and see what I get.” And I won’t be able to cite to you anything specific off the top of my head but I certainly do remember that book as a valid source of stuff.

Kevin Walsh:
Well, one of the reasons I was interested in how you teach it and how you assess it is because there’s something that comes from the title of the book. So, the subtitle is Character, Wisdom and Humility in a Polarized World and that presents some challenges for teaching, for learning. And particularly, I think the polarized world part of the title, it refers to aspects of this time we’re in that I think call out for the need for timelessly valuable traits that judges should have and that gets to practical wisdom and intellectual or epistemological humility which is … Those are the two characteristics that, as we progress toward the end of the book, you say this is what needs to be cultivated.
And I guess the question that I have is, in what sense are the book’s arguments tied to perennial truths about the particular kind of social animals we are, that we need judges and there’s a standard, as you talk about, a standard triad, a structure that judges fit into and, across time, they need to have certain characteristics, at the same time, it’s incredibly interdisciplinary. You’re citing social psychology, you’re citing sociology, you have a whole bunch of disciplines and so, in some sense, it’s informed by the latest. And how much of the book’s arguments are tied to, we might think of perennial truth and how much is tied to this, more current things? I know you can’t put a number on it or something like that but maybe one way of thinking about it is, if we were having the same conversation with Professor Oldfather the fifth 150 years from now, maybe 180, who knows, we maybe live longer, how might the book’s prescriptions be invalidated or validated by [inaudible 00:13:49]?

Chad Oldfather:
Yeah, it’s a great question because I do think a lot of it is timeless. In an important sense, everything I cover seems to me to be related to this set of questions that have been coming up for as long as humanity has been thinking about these things. And certainly, as long as anyone’s been writing down what people have thought about these things, what does it mean to be a good person, ultimately, is the question. But certainly questions about good character in general in the context of judging, the notion that judges are human and, therefore, susceptible to all of our systematic human fallibilities, those are pretty timeless as well.
And so, in that sense, I certainly was confronted with the fact that I’m tackling questions that people have been dealing with for ages and that, in a fundamental sense, I’m not saying anything that anyone hasn’t said before. But there are, as you suggest, recent aspects to it and I think that one of the contributions that I make is a contribution of synthesis, of drawing together all of these recent developments whether they be developments in research, whether they be developments in prescriptive philosophizing and so forth.
So, I think, turning to some of those recent things, one of the arguments I make is that the system has long-implicitly recognized the fact that judges are human, that that isn’t something … We often think of that as being this insight that the realists had and that, before that, it didn’t exist and I don’t think that’s quite right. I think that, not only is it the case that judges and commentators talked about the same sorts of factors well before the realists showed up, but that the very design of the system reflects a concern with these fallibilities, that the adversarial process is designed in some ways to make sure that judges get the information that they need and are exposed to both sides of a controversy. The expectation that judges provide written justifications for their decisions can be viewed as another check on thought, another way to make sure that these decisions are grounded in the sorts of authorities and ideas that they ought to be. Stare decisis certainly is another doctrine that is meant to keep judges from wandering off out into the wilderness on their own and getting lost, it gives them guideposts to follow.
So, that stuff is both timeless but, also, I don’t know that anyone has quite said these features of the system are a recognition of human fallibility and then I go from there to point out that I think lots of features of the system have changed in ways that have led to the weakening of these sorts of mechanisms. When I joined the legal academy over 20, almost 25 years ago, there was this great concern amongst a preceding generation of judges and scholars about what was, in the appellate courts at least, referred to as the crisis of volume, that appellate caseloads had, from 1960 till the late ’90s into the 2000s, had exploded and judges had greater caseloads, less time to devote to individual cases and decision making so we had the rise of unpublished opinions, delegation of writing of opinions, all those sorts of things and people were very concerned about this, this was a crisis, that was the word that was used. And now we’ve all just become accustomed to the fact that, well, that’s just how the system works now and any sense of crisis has mostly disappeared with that generation of judges and scholars.
But I think the changes, and it’s hard to quantify them, it’s hard to pin down exactly what they were, but I think those changes existed and persist. I think things like the automation of legal research and the influence of algorithms have changed the nature of law in ways that we’re only really beginning to recognize and AI, of course, is going to bring further changes that are difficult to anticipate. You got phenomenon like managerial judging. And so, in all, there’s this distancing of individual judges from the historical work of judging and I think that has all led to a weakening of the traditional constraints, led to an opening up of the possibility that the very human influences that we’re all susceptible to, cognitive biases and motivated reasoning and so forth, can creep in. And then I think there are more atmospheric changes. I think that, as a society, we have come to rely very heavily on the tangible and the quantifiable, that there’s this sense, and this is a generalization of course, but a sense that, if we can’t reduce a problem to data or a formula, then somehow it’s not real.
And in law I think this manifests itself or is at least conducive to the rise of originalism and textualism as methods because I think part of the claim that you often see in conjunction with those methods is, look, if you’re not basing your judgments on express words, on the text, on something tangible, you’re just making things up. And I resist that idea because I think there is a role for, if we call it knowhow, if we call it what Carla Wellen used, the label situation sense, I think there’s something real to that. I think that, as we gain experience, we gain knowledge of how to do things that is not fully articulable. And here too, I’m echoing other people, in lots of ways my book is recapitulating arguments that Anthony Kronman made in The Lost Lawyer 30 years ago at this point so, certainly, there’s a lot there that has been said before. Something I’ve discovered since in a project I’ve been working on that I wish I had known about when I was writing the book is I’ve been digging in more into some sociology and the shift from what Peter Laslett called the face-to-face society where in …
And partly this resonates with me because I grew up in a very small community, I grew up in a community where everyone knew everyone as a whole person and our interactions were not with somebody we knew just in a particular context but somebody who we knew in all of the contexts of their lives and vice versa and that used to characterize much of the world and now characterizes basically none of the world. And as we’ve moved away from that, from what the sociologists, the German sociologists at least call gemeinschaft into what they call gesellschaft or from community into society, we have to rely on these other things and I think that too has pushed us away from this sense that we can have knowledge that is not fully articulable. So, that was a bit of a meandering answer but I think it’s all both timeless and updateable.

Kevin Walsh:
Right. So, you mentioned the Kronman book, that’s heavily Aristotelian, right-

Chad Oldfather:
Right.

Kevin Walsh:
… and a virtue ethics that … And maybe it’s been accused of being nostalgic for maybe a time that never was or what have you but at least the characteristics of phronesis or practical wisdom and the idea that these are embodied in people whose lives experience experiences as lawyers, and he talks about the lawyer statesman model, that things have changed such that those characteristics don’t develop in the same way, they just haven’t been given the same setting. So, I think the way that you pointed to the mixture of changeless, so there’s human nature but human society changes and, of course, we’re social creatures and that doesn’t change but the … Because we’re social creatures and because society changes, then the way that this particular function changes.
I’m reminded a little bit of when you talked about where you grew up of going to traffic court with one of my children, I won’t out him or her as the one, but you go to traffic court and, look, what are you going to say? But we were advised to bring a report card, for example, it’s just interesting and I’m not sure that should matter to judging. But if you think about, in some ways, what’s the goal of speed limits, we don’t have the speed limits, we don’t follow them exactly, this is a jurisprudential question of what is the law of speeding and how do we … So, I think there are ways in which some of the face-to-face things still happen or we think about due process in connection with AI, it’s not a notice and an opportunity to be processed, right?

Chad Oldfather:
Right, yeah.

Kevin Walsh:
It’s to be heard and they can’t hear, they have no senses.

Chad Oldfather:
Yeah.

Kevin Walsh:
So, your book, it’s fascinating to me to think about the timelessness versus the time change that’s why [inaudible 00:24:15].

Chad Oldfather:
Yeah. And I think too that it really does … Another piece of it is reflected in, as you alluded to, changes in the profession and I feel like I caught the tail end of this in practice. And I was at a firm in Minneapolis which, at the time I started, was a … It wasn’t a Minneapolis only firm but it was clearly a Minneapolis centered firm and that’s where the client base was and the senior generation of lawyers there clearly had joined the firm under a different social contract, so to speak, than was the case with later lawyers. There was a real sense that, when you signed up as a lawyer at Faegre & Benson in that earlier generation, you were there for life if you wanted to be and that you would take your place at this institution that served as an advisor to other local institutions and that there was this very small world in which that role would be valued both for its ability to get things done but also for its ability to say you can’t do that or that’s a bad idea.
And now it seems like it’s … And I’ve kept in touch with … Many of my close friends are still there and it’s changed, it’s much more of a transactional model of lawyer-client relations than used to be the case and I don’t think you can ever recover that past but I think something valuable was lost.

Kevin Walsh:
Well, I want to ask about … Building on this timelessness versus changing question, you end the book in an unusually provocative way for an author. So, you think, especially a law professor and a interdisciplinary book, you have something to prove to the other people in these other disciplines and to the general public that you have actually integrated, synthesized things fairly, that you, although not yourself a sociologist, not yourself a psychologist, that you have fairly represented their work and things and all of that.
And that would tend, I think, towards a confidence in the thesis and what your prescriptions, every law thing ends with some prescriptions and yet you say, you end this way and this is after building up to the case for practical wisdom and epistemological or intellectual humility and here we are at the end and think, okay, plot twist or not at a fundamental level, now I’m quoting, “At a fundamental level then, my views are tentatively held and subject to revision as I believe should be a core feature of all people’s but especially judges’ beliefs but I could of course be wrong,” the end.
So, I’d ask why you thought that was the best way to end because it left me hanging in a sense but then I thought, well, if I ask that, it would show that I didn’t do the reading in some sense because it’s a missing the forest for this one tree here. So, I guess I’ll ask not why but what advantages and disadvantages from … I’m asking the author, did you have an … Ending the book on that note, because it’s deliberate and I’m sure someone pushed you at some point to say, “Don’t end that way,” and you said, “No, I’m going to,” but I could be wrong about that.

Chad Oldfather:
Yeah, nobody pushed me that I can recall.

Kevin Walsh:
Okay. So, there you go, I revise my belief.

Chad Oldfather:
It’s a great question. I think I will give partial credit for inspiration to Cardozo, I don’t think this is how … Well, I know because I checked this morning. It’s not how he ends his book The Judicial Process and I’m not sure exactly where it appears in there off the top of my head but it includes this sentence. If this seems a weak and inconclusive summary, I am not sure the fault is mine and I like the spirit of that. But the point of it is, because one of the main things I’m advocating in the book is intellectual humility, skepticism about the nature and correctness of one’s knowledge which doesn’t mean institutional diffidence, it doesn’t mean you can’t hold strongly held conclusions, it does mean something like just be careful, be careful because there are all sorts of ways in which we can be let astray. We’ve all got blind spots and the thing about blind spots is you can’t see them so you don’t know you have them and so, there’s this inherent, I don’t know, contradiction, I suppose, in being a strident advocate of intellectual humility and so it’s meant to capture that.
And I do want to reflect for a minute on another one of those chance encounters that I think was part of the story of the book which is … I don’t remember how I found it but I’m going to hold it up, a little product placement here. Nathan Ballantyne’s book Knowing Our Limits, he’s a philosopher, he was at Fordham at the time he wrote the book, he’s at Arizona State now which is this relatively recent book that pulls apart how we know … It’s a work of epistemology and, ultimately, this book that explores and advocates for intellectual humility, epistemology done in a way that’s sensitive to all of our fallibilities, a lot of drawing on psychological work, the Dunning-Kruger effect which I think most of us are familiar with, he draws on a lot of work that David Dunning has done with various colleagues and develops this idea of, and I think this is the part that most struck me, of what he calls epistemic trespassing which is being an expert in one field and then crossing over into a different field and assuming that your expertise transfers.
And I thought to myself as I was reading that, well, this is what judges have to do all the time. The judges are confronted with, because they’re generalists almost all of them, by nature they’re confronted with these problems that take them outside of the bounds of their expertise. Now, of course, that depends on what is judicial expertise, what is it, there are big questions that are bound up in that that I try to touch on in the book but this book influenced me a lot. And I hadn’t remembered this but I looked just this morning and his last sentence is I try to keep an open mind. So, there is something, I guess, to the spirit of making an argument in favor of intellectual humility that compels somebody to qualify it at the end. Strikingly, and I just got my pile of exams from this semester’s class, there are 50 of them and I haven’t read through all the essays but I did notice in going through them that … And this wasn’t something I emphasized during the semester at all but a good number of them have as their last sentence but I could be wrong.

Kevin Walsh:
Well, they love it. Yeah, that is fascinating. And I guess they’re inviting you to say, “Well, not completely.”

Chad Oldfather:
Right.

Kevin Walsh:
That’s interesting. Yeah, it’s striking. I do think that there is a sense that you’re taking on a lot by writing a book about character, wisdom and humility in a polarized world, there is an obligation as the author of a book with that subtitle to at least show self-awareness and that is helpful to stick with you. Something that was prompted by your answer made me want to circle back to this question of specialized courts because you had … The chapter right before you end is specialized courts and methodology and you mentioned earlier methodology and I do think that there is a broader shift perhaps. And I don’t know that originalism or textualism, that I’d single them out as better or worse in this respect of methodologizing judging, there’s other methodologies and those have their limits as compared with, say, jurisprudence as a way of thinking about what you’re doing.
But putting aside methodology, what do you say about specialized courts? Because I do think, to the extent that the main argument of the book goes through, I think, generally, generalist courts have to be good because of the experience-based learning that comes with the growth in the virtue of practical wisdom. But I know you identify some good things and bad things so can you just say a little bit about how to think about specialized courts in your book on judgment?

Chad Oldfather:
Sure, yeah, and I am of two minds about specialized courts. I do think, as you just suggested, that there are values of generality and partly that has to do with the sense that there maybe is some, whether it’s wisdom, whether it’s expertise, whether a different label is the right label, something that is general to judging. There’s a Holmes quote, something to the effect of, “Every day I get this new case and I’m terrified but then, ultimately, I walk up to the line and pull the hide and it’s the same old donkey of a question of law underneath,” which is just suggesting that, look, there are certain moves that exist in law and they’re ultimately … We come to learn them and we come to learn how to deal with them and I think there’s a lot to that.
I think there’s a lot too to the idea that, because law is ultimately this general thing for the public, for us all to live under, that there is value in having it funnelled through generalists as an almost enforced translation into something like a common language because one of the dangers of specialization is you get this fragmentation of knowledge and things become balkanized to an extent that becomes unfortunate and then you create boundary problems between the disciplines and so forth. On the other hand, there are efficiency gains, undoubtedly, there are efficiency gains that come with having, particularly in very technical areas of the law, judges who are familiar with those areas being the ones who are assigned primary responsibility for them. So, I don’t think specialization is an answer to all of our problems but it seems to me an answer to some of them.

Kevin Walsh:
To some, right. And so, I wanted to ask about … So, this comes into two judges who’ve influenced you in ways as this comes through in the book and it occurs to me in thinking about specialized courts that one of them was a judge on a specialized court and then another is the judge you clerked for, Judge Jane Roth, and that’s who you dedicate the book to. And that’s a big deal to dedicate the book to the judge you clerked for, I guess it was a good clerkship experience.

Chad Oldfather:
Yeah.

Kevin Walsh:
And my question there is what insights into law and adjudication did you get from Judge Roth that the embodied practical wisdom or what have you that, this far down the road and having had all these other experiences in the legal profession in different ways, you dedicate the book to Judge Roth. What are some lessons that you [inaudible 00:37:54]?

Chad Oldfather:
Yeah. So, I think there’s … My sense is that there’s an inevitable almost imprinting process that takes place with any young professional and their first boss, so to speak, because you’re confronted with someone who … The knowledge differential is just so great that, inevitably, they will seem incredibly impressive simply because they seem to know so much and the young lawyer or whatever will never imagine that they will ever achieve that level of knowledge so there’s a certain awe, I think, that’s built in structurally to the relationship. And as well for me, I didn’t come from, as I mentioned, I came from a very small town, very much a farming community, I didn’t know any lawyers, there were no lawyers in my family, I was first generation student and law student all the way through. And so, for me to have this experience working not only with a federal judge but one who happened to be married to a United States Senator and getting to know them as humans and as really fundamentally decent human beings was a very valuable experience for me and they were just tremendous models for, I think, how to be professionals, how to be partners in a marriage, just how to be people, they were both absolutely wonderful people.
And I was, of course, a young law graduate and you know how it is, you do well in law school and you got all these law firms telling you that you’re great and all that sort of thing and so I was full of big ideas and she would patiently entertain them and then in effect say hold your horses because the world is more complicated than that and did it in this … She was always open to listening. It wasn’t one of those clerkships where there was this, okay, well, we’ve got oral arguments the next day, we’re going to essentially hold a seminar as we all prepare, it wasn’t that sort of arrangement at all but she was very open to hearing our perspectives and responding to them in an appropriate way.
And it’s one of those things … So, I distinctly remember thinking at the time I’m not sure I’ll ever have a job as good as this one ever again in my life. Happy to say that the one I’m in right now is probably better but I still did treasure that time as a clerk. And then you gain appreciation over time too that she was not any kind of movement judge, she didn’t adhere to any particular school of thought, she didn’t think of herself in that way, she wasn’t adherent of no ism of any sort, just a judge, being a judge in, really, what I think is the fullest sense of that word.
And one of the things that was heartening for me to find out as I was doing all of this interdisciplinary research on practical wisdom was to learn that there were some researchers who attempted to find out who are wise judges. And they did a survey, they sent a survey out to some large number of lawyers asking who do you identify as judges who are wise and there were, I don’t know, let’s say 15 to 20 judges that surfaced through this. And she was one of them which didn’t surprise me, certainly delighted me and so you just take that example with you and I don’t think I could have had a better example of how to be a lawyer and a human being than she was.

Kevin Walsh:
That’s beautiful. I think the … I did not appreciate the connection with a Senator Roth so I gather then is this … So, you might say then that the lessons learned, they compounded over time and, when you went to write the book, you could withdraw them and it wasn’t impacting.

Chad Oldfather:
Yeah, indeed, indeed.

Kevin Walsh:
Is that the Roth that you’re talking about?

Chad Oldfather:
Yeah, yeah. No, that’s exactly right.

Kevin Walsh:
Oh, interesting, interesting. Well, the other judge I alluded to was a judge on the US Court of Appeals for the Federal Circuit and now I don’t know if this is … Is it Judge Meyer or Judge Mayer but, if it’s Meyer, then, okay, or Judge Mayer, both have interesting double meanings, I suppose.

Chad Oldfather:
Yeah.

Kevin Walsh:
But he was a judge on the federal circuit and you write in your acknowledgements that this book’s origin and, in an important sense, my entire career in legal academia both date back to a seminar entitled The Judicial Process that was taught by this judge on the US Court of Appeals for the Federal Circuit, I found that remarkable. And I just thought I’d ask you to perhaps elaborate on the seminar, that one, and then a little bit on the trajectory to justify that statement in a way that … Not prove it but I think law students, for example, taking your class might find that striking as well at the outset even they go … And then get all the way to the end and quote that. So, yeah, can you say a little bit about that seminar and, yeah, its influence?

Chad Oldfather:
Yeah, yeah. So, the book that that seminar used was by, I think even at that time, Senior Third Circuit Judge Ruggero Aldisert-

Kevin Walsh:
Aldisert, yeah.

Chad Oldfather:
Yeah, called The Judicial Process and it was this book that covered a lot of the same territory that my class does, the nature of law, judges as lawmakers, statutory construction, the rule of intuition, subjective influences on decision making, opinion writing, precedent and so on. And so, we covered a lot of the same ground, I can’t say that I necessarily in some conscious way retained a lot of the knowledge that we went through. I certainly kept the book and drew on the book especially early on in my career for inspiration but I think the influence was, in some degrees, largely beneath the surface but it did … How did it lead to my career? It certainly sparked the interest in the topic in general, more tangibly, we wrote papers as part of that class and the requirement for the paper was it has to have something to do with the subject matter of the class.
Somehow or other, I decided to write a paper on the use of baseball metaphors in judicial opinions which led me to stumble on this small literature about metaphors and their function, not only in the law, there had been a couple of articles written but also in literary theory and so forth. And I wrote that paper and then, while I was clerking, I was like, “Well, let’s see if I can get it published.” And so, I sent it out and it ended up getting published in the Connecticut Law Review and I think having that publication on my resume when it came time to look for this job certainly helped. So, I think, if I hadn’t done that, I would’ve had one less publication, I may not have found any job as a law professor. So, that’s the story there.

Kevin Walsh:
Well, nice. Yeah, you maybe hit it out of the park, I suppose, with that and have, in some ways, rounded the bases and now you’re home-

Chad Oldfather:
Yes. People still cite it too which is amazing.

Kevin Walsh:
Oh, that’s really neat, that’s really neat. Well, I do want to ask a little bit more about legal education because this is a book … So, it’s interdisciplinary, it gives a lot of information and draws on studies and, at the end, as with a lot of legal scholarship or interdisciplinary scholarship related to law, it has some prescriptions. And to me it provokes the question of, yeah, how do we do a better job in law schools, how do we do a better job in the profession with being aware now after reading the book of the changes, of the different kinds of influences that are undermining some shared values as well as potentially other opportunities. So, you offer four things and I’ll give the short version and maybe we can talk about them.
So, one is adjust existing mechanisms for channeling judicial behavior. So, this goes back to you have multiple chapters about internal and external effects or mechanisms on channeling judicial behavior. So, that’s one, so the focus is on judicial behavior. One is on legal education, so reforming legal education in ways that focus on the professional formation of practically wise lawyers. So, we’ve got the judges and their environment, we’ve got the legal education and then the third one is about reorienting or reinvigorating norms within the profession so the bar can better respond essentially and paraphrasing here. But the public wants standard judges, they have a good sense of what a good judge is and it’s not one that’s readily identifiable with some subset of the profession or elite members of the profession. So, reorienting or reinvigorating norms and then the last is judicial selection, improving that.
And a lot of these are controversial in different ways and you mostly are identifying some places to look, showing that you know some of those limits of things that have been tried for judicial selection but I thought I’d ask about legal education since we’re both law professors. What can and should we be doing better? What reforms to legal education do you recommend?

Chad Oldfather:
Yeah, I think … And I’ll answer it by stepping back a little bit and I think saying that … Obviously, remedying polarization in society is too big a problem to know how to crack and so part of what I’m suggesting is that we attempt to do it in the profession because I think it’s at least a more limited universe and we can probably find within the profession a set of ideals that we can collectively accept related to the rule of law primarily. And that part of how we do that is by our process of legal education that is … I’m now not remembering who this quote is from but I quote somewhere in the book the idea that, look, the law is a product of judges and judges are who the law schools make them because judges come out of law schools. We provide the initial exposure, we create the sense of norms and so some of that, I think, relates to character formation work that’s increasingly taking place in law schools that is involving … Some of it is just amplifying work that might be traditionally associated with legal ethics classes but giving it not so much of a code-based approach and more of a full embodiment in what does it mean to live as a lawyer in an appropriate ethical way.
And two, I think related to that is really attempting to create a culture that doesn’t encourage this retreat into opposing camps because, certainly, an experience here and I think it’s probably the case at a lot of law schools, is we find that our students are hesitant now to voice positions that they think might be controversial in class because of fear of alienating some of their classmates. And there is a tension there too because, as we’re forming them professionally, we deliver this message during orientation that, look, these people, look to your left, look to your right, it’s not that one of them isn’t going to be gone in a couple years, it’s that one of them is going to be, at least one of them is going to be a colleague in some meaningful sense of that term for the rest of your professional life so you have to get along with one another, you have to treat one another well. And I think in a world where that can easily be taken as, well, therefore, I shouldn’t say anything that they might find offensive, there’s this stifling of the exchange of views and I think people tend to then retreat to their own camps to say what they’re thinking rather than saying it in class to one another.
And so, some of it is just attempting to foster this atmosphere of communication but also just trying to find common ground that we all believe in the rule of law, we should because that’s what we’re here to do. And so, I think that’s a piece of it, I think as well there’s become this tendency in law to engage in the culture of celebrity with respect to Supreme Court justices especially, I find that troubling both as a phenomenon in general but also as something that we should encourage by emphasizing it in law. I think maybe the best judges tend to be the ones that nobody’s heard of because they’re focused on doing their jobs rather than creating a reputation. So, it’s small things like that and I do feel a bit like I could or should have said more concrete about what we should be doing next but those are hard questions and, in some ways, I think the important thing is to start having a conversation because I’m not sure what the answers are to all of those questions.

Kevin Walsh:
Well, you’ve been very, how to put it, admirably … I don’t know. Why isn’t the answer everyone should take your class? I don’t know what the … So, the idea is, well, listen, that’s why I wrote this book and people should read it and they should take my class. I do want to ask, why do you think … So, why do you think 50 students signed up? Because as you look at, if you’re a law student, there’s something you want from law school, there’s multiple things you want from law school. Well, one of them is to pass the bar, absolutely, to be a member of this profession but that’s a bare minimum in some sense. You also maybe want some things that you can only get in law school that you can’t get in the profession. It seems though that there’s something you’re offering in this book and in this class that students are finding valuable that perhaps they’re not getting in their other classes.
And while I understand you don’t want to toot your own horn or go against some of the virtues that are there, I do think, actually, there’s something coming from you to be said for the book, for the approach you take. And maybe the way to ask it is not why should more students take your class or more professors offer a course of this sort but why do students want this, what do they get?

Chad Oldfather:
Yeah. Well, one answer is that we have a distribution requirement that includes that they take a perspectives class and this is a perspectives class so it is a way to meet a requirement in that sense.

Kevin Walsh:
Yup.

Chad Oldfather:
But I do think that there is a hunger to talk about and think about these sorts of things and it’s in the students. I’ve been surprised, I won’t say the book has exactly set the world on fire in the ways that I might have dreamed about in the same way that I dream about what happens when I buy a lottery ticket but, nonetheless, I’ve been surprised by the number of judges who have said, including one, I just got an invitation to speak to an entire state’s judiciary about the book and the judge who extended the invitation said it scratched an itch that I’ve had and that a lot of my colleagues have been feeling as well. And so, I think that’s it, I think that there is something about this topic and set of topics that the world we live in right now has really teed up and I think we should be thinking about these things and, whether I’m an especially effective messenger of the ideas, I’m not sure but I think the ideas are good.

Kevin Walsh:
Well, one thing I’ve taken away from this is knowing our limits and the virtues of limits as well and I think that’s probably a good place to end in terms of our time so thank you very much for this conversation. And for those of you who are listening at double speed or triple speed or what have you, this is it. Thank you for listening in on our conversation and, for more discussions of this sort, I encourage you to visit the CIT website at cit.catholic.edu. Thank you.

Chad Oldfather:
Thank you very much.

CIT Managing Director Chad Squitieri featured on CSPAN

Angela Sullivan

November 5, 2025

CIT Managing Director Chad Squitieri joined CSPAN this morning, to preview the Supreme Court tariff argument with William & Mary Law Professor Jonathan Adler.

Watch the full segment here.

CIT Managing Director Chad Squitieri featured in Politico Magazine

Angela Sullivan

November 5, 2025

CIT Managing Director Chad Squitieri was featured in a Politico Magazine piece that explored the tariff powers of the President. Prof. Squitieri debated Michael McConnell, a Stanford Law professor and former judge for the U.S. Court of Appeals for the Tenth Circuit. Prof. McConnell is a counsel of record for challengers of the Trump Administration’s tariffs, which was argued before the Supreme Court on November 5th. Prof. Squitieri argues that the Administration’s tariffs can be defended as an exercise of the power to regulate foreign commerce.

Read the debate here.

The Catholic Intellectual Tradition: A Jurist’s Perspective

Angela Sullivan

October 21, 2025

Kevin Walsh:
Welcome, good afternoon. My name is Kevin Walsh. I’m Knights of Columbus professor of law in the Catholic tradition here at the Catholic University of America Columbus School of Law, director of the Project on Judicial Virtues at our Law School Center for the Constitution and the Catholic Intellectual tradition or CIT, where I also serve as senior fellow.
It is my privilege on behalf of CIT and its director, Professor Joel Alicea, to welcome you to our event, the Catholic Intellectual Tradition: A Jurist’s Perspective. We’re grateful to the three federal judges who will be presenting their perspectives as jurists at this event. After we open with a prayer, I’ll introduce our moderator who will then introduce our other presenters and conduct the event. After this event, I invite you to visit our website, cit.catholic.edu, where you can learn all that we’ve been up to. Let’s open with a prayer.
The Father, Son, the Holy Spirit. Lead us Lord in your path and we will enter into your truth. Let our hearts be gladdened that we may fear your name. Let us take joy in your law meditating on a day and night, that we may be like trees planted near streams of water, that our leaves may not wither and that we may yield fruit in season. Come Holy Spirit, fill the hearts of your faithful and kindle in them the fire of your love. Send forth your spirit and they shall be created and you shall renew the face of the earth. Name of the Father, Son, the Holy Spirit, amen.
So our moderator for this event is Judge Kyle Duncan of the United States Court of Appeals for the Fifth Circuit, a visiting jurist at Catholic law this year, Judge Duncan has served on the United States Court of Appeals for the Fifth Circuit since 2018. Prior to that, Judge Duncan held some of the most interesting and challenging jobs a lawyer can have. Well, from 2004 to 2008, he was an assistant professor of law at the University of Mississippi School of Law. Okay, you might think what about the interesting and challenging parts? Maybe I’m overestimating the law professor calling.
Okay, well, from 2008 to 2012, Judge Duncan served as Appellate Chief at the Louisiana Attorney General’s office, and then from 2012 to 2014 he served as general counsel of the Becket Fund for Religious Liberty. In fact, we represented a client together at one point. Immediately before becoming a judge, he practiced at the DC firm of Schaerr and Duncan LLP where he was a founding partner. So that’s interesting and challenging. Thank you Judge Duncan for presiding today and for all you’ve done for our law school. Over to you.

Kyle Duncan:
Thank you Professor. It’s a joy to be here. I always love coming to moderate these panels so that you students can hear how the Catholic faith has informed the careers, the vocation and the judicial obligations of real judges. And it’s wonderful to be to a school where we can pray and not be sued, and it’s great to be here. I see one of my future clerks, I see an intern who was with my office this summer, so it’s wonderful to be here.
To my right, Judge Bill Nardini of the Second Circuit Court of Appeals. We’re glad to have him with us. Judge Nardini was appointed to the Second Circuit in 2019. Prior to that he was with the US Attorney’s Office in Connecticut for 19 years where he served both as appeals chief and criminal chief. For four years of that, now I want to know how to get this job. He was DOJ attache to Italy, San Marino and Vatican City. Talk about interesting. I don’t know if it was challenging, but the food must have been nice.
Prior to that, he was a Fulbright scholar in Florence, and also worked at the Constitutional Court in Rome. He clerked for really a pretty stunning array of judges, Judge Cabranes, Judge Calabresi and Justice O’Connor. Prior to that he graduated from Yale Law School and Georgetown and also attended La Sapienza University in Rome.
To my left, Judge Rudy Ruiz, who is a district judge, a United States district judge on the southern district of Florida. He was confirmed to that position also in 2019. Prior to that he had quite a bit of judicial service. He was from 2014 to 2019 a judge on the 11th Judicial Circuit court to which he was appointed by Governor Rick Scott. Prior to that he was on the Miami-Dade County Court. Prior to that he was an assistant county attorney for Miami-Dade County. He was a law clerk to Judge Federico Moreno, also of the Southern District of Florida. Does Judge Moreno still sit [inaudible 00:05:10]?

Rodolfo Ruiz:
He does. Senior, yep.

Kyle Duncan:
He received his BA from Duke University, his J.D. also from Georgetown. And I wanted to point out that he was on the state championship water polo team in 1997, which I was not on that team. We’re delighted to have these two eminent jurists with us and without further ado, I think the first topic, general topic, this is going to be a conversation, we want to talk about the subject of vocation, and what does vocation mean? What does vocation mean as a lawyer, as a judge, how has your sense of vocation and your Catholic faith shaped your career and your work? Let’s see, I’ll go to Judge Nardini first.

William Nardini:
Well thanks very much Judge Duncan. I’m pleased to be here with all of you here at Catholic. One of the reasons I wanted to talk about vocations today is the entire way I got on the path to becoming a judge. It really started when I was growing up, when I was in high school back in New Jersey in a small town. There were no lawyers in my family, but a very good family friend who was a lawyer in town and a graduate of Catholic law school. He really gave me the opportunity initially to see what it meant to be a lawyer, what it meant to go into court, what it meant to meet with clients, what it meant to research law school or to law.
And this particular mentor early in my time, Joe Mecca, who was a close family friend, he was one who put me onto this. And I think it’s very fitting, at least for me to be talking about vocations, about what puts you on a path to something that you find as a calling. Back here at Catholic where I know that my mentor started out his path towards the law. So I’m grateful to be here, I’m grateful to him.
What I thought I would talk about is first a little bit of a general sense of what I think of when I think of vocations and then give you just a little illustration about my own path, how I have moved forward with my career over the years thinking in the Catholic framework of vocation and give you an idea. And I thought it would be helpful, because probably so many of you are wondering, where will my life take me? Where ought my life to take me? So hopefully it’s something that may resonate with some of you as you start to think through the many wonderful things that lie in front of you.
So in general, what’s a vocation? Well, it comes from the Latin word to call, vocare. It’s a calling. And if you look at the catechism of the Catholic Church, in the glossary, no less, there is an entry for vocation. And it says a vocation is the calling or destiny we have in this life and hereafter. And it’s important because very often as Catholics, we think of vocations in the religious, in a sense of the calling to a religious life, right? So in Connecticut, our diocese right now, at the end of every mass we say a prayer for vocations, that people might be inspired to the priesthood or to a consecrated life as a sister or a brother. And that’s a very important type of vocation that’s central to our Catholic world.
But the concept of vocation in a Catholic framework is even broader than that. Because even those of us who may not be called to the consecrated life or to holy orders, we all still have some kind of vocation, or more than one vocation. And it was Pope Benedict the 16th who actually said, “Each of you has a personal vocation which He, God has given you for your own joy and sanctity.” So when we enter into our adult lives, we have to think what are we called to do? And I think it’s important to preface this discussion with at least two observations. One, your vocation may change over time. You may be called at different points of your life to do different things. So don’t think that there is one path, there’s one thing that you’re being called to do and thus shall it ever be. You may be called to do different things over time.
You may also have multiple vocations to fulfill at the same time. And so for myself right now, I feel like I have a vocation as a husband, as a father, and professionally as a judge, you may have other callings, say, as a community leader. For about 10 or 15 years I’ve been a scout leader for my kids in Boy Scouts and Girl Scouts. And because the intensity of that, I felt like that was a vocation, something I was called to. So when you think about your own lives, think about that in terms of change over time, and think of potentially having multiple callings at the same time.
So when we talk about vocation, I think of at least two things. One is, we have to go through what the church talks about, a sense of discernment, a process of examining ourselves and our lives and figuring out what are the gifts that have been given to us? Because all of us have been given some gifts and they will vary considerably. And you may have different talents, you have different things that have been given to you, and it is your calling to make use of those. And I think of the parable of the talents. You have the three servants who are given the talents, and the talents, it’s a great, I think of double entendre with the translation into English because it really just means a chunk of gold back then, a talent of gold.
And the two servants, they go out and they are entrusted with this amount of gold from their master while he’s away and they go and they invest it and they get a return on the investment. And when the master comes back, they’re able to give him even more than he entrusted them with. And that’s expected from us. And then there’s the one who says, “I’m going to bury this because I don’t want to lose it. I don’t want to get in trouble.” When the master comes back, he says, “Here you are. I know that you’re a hard master and I’d get really in trouble if I blew the money. So here is exactly the amount you gave us.” And that’s the guy who gets in trouble from the master and he says, “That is not what I expected you to do with it.”
And I always think that that’s again a wonderful translation, the talent of gold because it really is a translation to what we are given. I don’t know what the talents you all are given. I’m sure you’re all given many things, but you’re expected to take them, let them flourish. And here’s the thing, the way they have to flourish is in service to other people. You need to take those talents, and not just turn them to your own use, but find ways to make the world a better place, to help your neighbor, to be in service of God and of your neighbor. That is what those talents are for.
Now, you may ask yourself, well, how am I going to figure out how to make these talents helpful? Well, one thing is of course determining what you’re good at. And presumably you are all sitting here because one of the things you figured out is you’re good at the law, and I’m sure you all are. And you’re in a process of learning from your professors to how to improve those talents, how to develop them, how to make them blossom. And then you will go out and you will find a way in the law to put them to the service of other people.
And there’s not necessarily one way to do it. So you might think, well, it’s obvious if I do something that’s very public-facing, you might want to work for your community and you could work in government. So it’s like on the criminal side, you could be a prosecutor and you could be a public defender, right? There’s some obvious ways where you’re putting yourself out into the public in some way, or a judge, but there are so many other ways you could deploy that. And what I love to give is what I tend to think would be to say, a counterintuitive example, let’s say bankruptcy law, which frankly I always assumed would be really, really boring. No offense to anyone who’s studied in bankruptcy or teaching bankruptcy.

Kyle Duncan:
I can’t imagine why you’d think that.

William Nardini:
I know, who knows, right? The bankruptcy code is such a scintillating read. Except I took bankruptcy when I was in law school, and the first day of the syllabus was not about any provision of the bankruptcy code, but it was the professor talking about how this was going to be a course about the pathos of human failure and redemption. And I thought, wow, when you put it into that framework, that can be a really inspiring thing. So you could find a passion, a way to deploy your legal gifts in an area that maybe to me might not have instinctively struck myself as a way to serve other people. But you think, wow, that could be very inspiring. So I am pretty convinced that in almost any area of the law, you can find a way to develop your gifts in a way that’s going to give back to your fellow people and serve the greater purpose that we’re all called upon to achieve.
So let me just give you a really simple outline of where I’ve been, my path, and it has been a fumbling path, a little bit of reaching into the dark, not quite knowing what to do. I don’t think any of us would ever profess to have said, “Well, I emerged from college and I knew like a laser exactly what I was called to do and I never missed a beat.” So I think we do fumble away, but as long as we’re continuing to grope and try, that’s what can be expected of us. I always sort of had this bug in my mind about the law, but I never quite knew exactly what that was because I hadn’t come from a family with lawyers in it. So I didn’t really understand what it was to be a lawyer.
But I also, in a very weird way, also as Judge Duncan mentioned, I always had this thing for Italy and learning Italian. I think part of that was my father died when I was in high school on my mother’s side, he was an Irish American family, on my father’s, it was an Italian American family. And I think I was very interested in sort of exploring that side of my family’s history and my life. And so I in college started studying Italian and I studied abroad for a semester. And when I graduated, I wanted to go back to Italy and I wanted to live in an immersive environment and study Italian politics, which I had done in college. Now let me just mention, in terms of one of the other vocations in college, I was fortunate enough at Georgetown right across the way from here, I was able to meet my future wife, Holly. And we knew from an early age that one of the parts of our lives, one of these important vocations would be our marriage together.
And that has been probably the lodestar of our lives together. Building around that we both wanted to be in Italy. She wound up moving back to Sardinia. I wound up moving to Rome for a year to study at the University of Rome. And you might think, well, that’s a distraction from this mission, right? If I had had a single-minded mission to study the law, this was a distraction. Why on earth would I go off to the University of Rome and I would study political science? But I did, because that was something that somehow I understood was important to me and maybe didn’t understand how it would be useful in the future, but hopefully it would. And I came back from that year in Italy where I did become fluent and really learned a lot about Italian politics and how the government worked and came back to law school for three years, and went through that in New Haven. I did find ways to say write a paper about comparative constitutional law, but again, I wasn’t sure what am I going to do with this law thing?
So I did what many people do, and I highly encourage many of you to do, is I clerked for a judge to say, well, let me learn from someone who really knows what they’re doing here. And I clerked for Judge Cabranes who was on the District Court and the Court of Appeals in Connecticut in the Second Circuit. He had just been named to the Second Circuit, but he was still sitting by designation on the District Court. I really had almost a double clerkship that year. And then Judge Calabresi in the Second Circuit and then Justice O’Connor and I really got to see what was going on inside the courts, learning at the feet of masters. And one of the things I learned about what I might want to do was I watched the litigants who were appearing in front of us, and in particular in the district courts, and also in the Second Circuit, I was struck by the appearances of the US attorneys who would come in, and on occasion, they would confess error, and this was sort of a crazy thing.
They would come in and say, “Yeah, we should have lost.” Period. That was it. “The sentencing was messed up. The District Court should not have given the sentencing enhancement, you should remand this and have the District Court impose a lower sentence.” Period. And I thought, what a luxury, what a great job that you get to come in and argue for what you think is right, even if it might superficially seem to be against your interests. But it wasn’t against their interest because the Department of Justice’s view was, no, no, we’re serving the public, and if something has gone wrong, if the law has been misapplied, that disserves the public interest. So I thought to myself, well, that’s really what I want to do when I grow up. So of course when I finished clerking, I did not apply to the US Attorney’s office. I thought, well no, I have this other thing that’s pulling me still, right?
This whole pull back to Italy and my wife and I wanted to go over, we wanted to live abroad, we wanted to go back to Italy and I got a Fulbright, I studied comparative law in Florence at the European University Institute. And again, was fully immersed. And that led, one thing to another to working for a year at the Italian Constitutional Court in Rome where I got to meet some of the Italian justices. And they were great because they were very curious about knowing what was going on in the US. They were curious to know how the US Supreme Court was deciding things. So I would help them research things, and I would have this again, master class with them to learn how their system worked. And then when I came back to the US, cutting it for, I wound up at the US Attorney’s office as a lying criminal prosecutor, and I was doing things like bank robberies, drug cases, all the little things, wound up becoming the appellate chief, wound up becoming the criminal chief.
But in the middle there, there was this opportunity to be the Department of Justice attache in Rome. And that’s where it all sort of came together, this passion for service through the department, to the public and the law, but also this love of Italy. I wound up being the attache in Rome where I spoke Italian at this point. I understood the Italian system, and I could be the person who was the go-between for the American and the Italian legal systems. To the point where I even argued a couple of cases in the Italian Supreme Court trying to explain, for example, racketeering law, RICO, the Racketeer Influence and Corrupt Organizations Act. We were trying to extra extradite people to try to explain our relatively arcane statute in terms that would be understandable within the Italian legal system that doesn’t really line up.
And it was a time when I was really pleased that I was able to bring together two of those things that I loved and understood that I think I had a good handle on, studying Italian law and speaking Italian and understanding American criminal law. And I was able to put them together in a way that I think was useful.

Kyle Duncan:
I’m not surprised there’s a word for racketeering in Italian.

William Nardini:
There’s not. There’s not. I would explain that it was analogous to Associazione Mafioso.

Kyle Duncan:
That sounds about right.

William Nardini:
So all these sorts of analogies that I was able to bring. And then when I came back from Italy after those four years, I was the criminal chief, was there for another five years in the department before I then get this call. Literally, you talk about vocation being a call, right? You get a call out of the blue to be a judge, and here I am on the Court of Appeals. And I think I’m going to stop there because here I am a judge, but I think it’s just an illustration of you don’t know how your life is going to go, but if you pursue the things that you think you’re good at, and that inspire you, there are ways when opportunities present themselves or you create the opportunities, where I think you can bring them together in ways that you think, at least you hope that somehow you’re doing something useful that’s making use of your gifts. So I’m going to stop there.

Kyle Duncan:
Thank you. That’s certainly been true for me as well. Judge Ruiz, vocation, what has it meant to you in terms of your career? How did you get where you are? How does it inform what you do today?

Rodolfo Ruiz:
Well, thank you for the introduction, Judge Duncan and to Professor Alicea and the whole team at the CIT in Catholic. It’s really an honor to be here and share this moment with you all. I hope that all of you as students appreciate just how unique and special this environment is, that CIT and Catholic have created. It’s not something you find every day. It’s certainly not something as I was at law school also at Georgetown, not too far away that I saw much of in any law school environment. And so this is a really special place and I hope you all take advantage of all the programming and opportunities that the team at CIT has designed for you all. And it’s really an honor to be here and share the stage with two jurists that I really admire and look up to. I will say so much of what you just heard from Judge Nardini can be similarly applied to my path.
And I think if you could try to discern from that one of the themes I think that ties in well with our faith, it requires a little bit of surrender, which I think we all know is a large part of what our faith teaches us. We as lawyers and you as soon-to-be lawyers, we like control. We as judges like control. I can tell you judges hate surprises. Certainly district judges hate surprises. I can tell you that. And no matter how many motions in limine I’ll rule on, a trial is very organic and I try to minimize those surprises. But I’m sure in the trial I’m going to start on Monday that I will be inevitably surprised. It happens every time. And so I’ve learned to deal with it. The same applies with your career and your path in the law and your path in life. And so much of the twists and turns you will take from here and as you go into your career, you may not be able to discern at the time what they mean in the longer arc of what your career will be.
I am sure, as you just heard, Judge Nardini mentioned that he couldn’t have imagined the connection between his time in Rome and how that would come full circle where he would be arguing before the Italian justices where it would ultimately then be something that would advance his career at DOJ. You couldn’t script that or plan that if you tried. And so I urge, you don’t try. Some of this doesn’t mean that you don’t want to be aggressive and challenge yourself and find the moment and the place where your talents marry your interests. My father always used to say to me, “If you can’t really do physics, you’re probably not going to be an astronaut.” And I would say to him, “I think, dad, you’re probably right. I mean I’m okay at math. I’m not that great.” And the message was always not that you don’t want to try and push yourself and try to challenge yourself, but it’s also finding that what I would call them was the sweet spot of where your gifts, your God-given talents, can be married with what your interests are.
What’s interesting to me, listening to Judge Nardini’s story is a lot of that happened to me too. Down to the fact that his mentor was educated here at Catholic Law. Mine was educated in Notre Dame undergrad, not law school, university of Miami, but a big Golden Domer, okay? And that was a judge I clerked for, Judge Moreno, and as you heard Judge Nardini say, I couldn’t say it any better. That was a pivotal turning point for me in that I came out of law school thinking that I was going to be in boardrooms, drafting contracts and working on mergers and acquisitions and asset-backed financing deals and project finance. I was true and true thinking I was a transactional guy. In fact, I think I’m the only member of my court that spent time in big law doing transactional work, purely transactional work, nowhere near a courtroom.
And at the time I was in law school, I thought that’s what I wanted to do. I was an economics major from undergrad, I spoke Spanish, I was recruited in a law firm that had a big Latin America practice, and I just kind of plugged along because that’s what everybody was doing. And I was going to do my summer associate gig and I was going to go on from there. And it wasn’t until I was a 3L that mentors of mine mentioned, “You might want to look into this clerking thing. You’ve kind of stepped aside from it, but you like a lot of the things that would bring you into the courtroom. You’re doing well in those arenas. Why not open that door? Don’t close that door.” And it wasn’t until I clerked that I realized really what I was missing. I had not given myself a fulsome opportunity to really explore what it would be like not only to be a true litigator and a true trial lawyer, but also the public service aspect of it.
I had engaged in public service throughout my time as an undergrad and had kind of left a little bit. I had spent a summer interning the US Attorney’s office and opened some doors, but I kept thinking that the path had to be something in private practice, and had moved away from government as an option. And it really wasn’t until I clerked and I found myself very similar to what you just heard from Judge Nardini in court watching trials, watching prosecutors and public defenders argue before me watching lawyers day to day do what they do in defense of their clients, that I had this drive that maybe I needed to redirect where I was headed.
And I went back to the law firm despite the insistence of the judge I clerked for, told me this is a bad idea. You just saw this. How are you going to go back? This is not where your path is, but sometimes again, you have to learn the hard way. And I did. And he was right. And a few years later I called him and I said, I think I want to get back into being a lawyer that is appearing in court that’s litigating and away from doing a transactional work. And the call of public service happened at that time, and that’s when I became an assistant county attorney. And my career changed completely. I moved into Civil rights defense. I defended law enforcement and corrections personnel in 1983 litigation in federal court, really hard-working noble individuals who were being held in a court for doing the best they could in the line of fire.
And I was defending those people and in many times career altering cases that they were living through. I was there with them, the most rewarding work I could possibly imagine. I did defense of the mayor, the city commission or the county commission, the tax collector property appraiser. I was in local government in and out of court both trial and appellate work. And it was wonderful. And at no point similar to what you’re from, judge Nardini did I imagine I was going to be a judge. And it was through those appearances in court that something in the back of my mind said maybe one day. And once again, going back to a mentor who also was very much rooted in the faith and has always said, just run was always said, it is very much a vocation. It is like taking vows. It is like being religious in that sense.
You put on the road certainly different in many ways, but there’s a commitment there that’s life altering. It’s not a job. It’s really something that you have to embody in everything you do when you take on the role of a jurist. And he was the one that motivated me to put in to be a state court judge, which I was for seven years before I joined the federal bench. But it’s interesting to me that both Judge Nardini and I had mentors who were very much rooted in their faith and served as templates for us as individuals who lived their faith in their practice. They didn’t leave their faith or check it at the door. Now of course it doesn’t inform your decision-making. We all take oaths to protect and defend the constitution and the laws of the United States, but it makes us better jurists in my view, in that we have that underpinning, that core conviction, that search for truth that grounds us really in what we do.
And so when we talk about vocation, I really think it is a choice that you make where you’ve really discerned what is calling you as you just say, what is really, what is it to serve? What are you going to be doing day in and day out that you feel that not only are you answering to a calling, but also that you’re helping those around you. And I urge you, it doesn’t really matter. You could have stayed in private practice, but there was always the pro bono to do. There was always other mechanisms by which to help those that are less fortunate. So it doesn’t have to be public service. I think you can get there in different ways, but you can never forget what many of us or many of you will take in an oath as you become members of a bar in our country to help the poor help those less fortunate.
And you have to remember that that’s part of the oath and that’s part of the mission that you’re undertaking as lawyers, especially in a past like Catholic, which is teaching you not just to be a great advocate but is also teaching you that there’s more to it. There’s more to what you can give back in the world with the gifts that God has blessed us all with. And so as long as you try to marry those two things, you will find yourself in the place that the Lord wants you to be. And I will tell you, I look back on those moments of sitting in boardrooms in Panama on an airline deal and wondering, okay, I think I’m doing good things here. I’m helping the client. And you wonder, well, did that ever come full circle? Did I ever have my Italian Supreme court moment that Judge Nardini had?
Not as exciting as his, but I will tell you that I remember being a young state court judge in a complicated contractual dispute and looking at the papers and saying, “I’ve drafted this. I know what happened here. And I’ve told people all the time, especially those that don’t know where they want to go, do I want to be a litigator? Do I want to be in bankruptcy as we just talked about? Do we want to be in transactional?” Whatever path you find, all of it will come around full circle and help you. There’s no mistakes. Go back to the surrender.
I’ve discerned now looking back that that time, those formative years, after clerking before I went back to public service, came back to help me immensely as a jurist in so many contractual disputes, so many issues I’ve seen in court that I speak the language. And if I hadn’t taken that turn and done that time, I wouldn’t have been as prepared when I had my opportunity to serve on the bench. And so all of it has come to a moment to help me, but it is hard to tell at the time it’s happening. As doors are opening and closing you have to have a lot of faith and a lot of trust that what is unfolding in your career is where you need to be.

Kyle Duncan:
Thank you. As I listen to the good thoughts and good advice that both of you judges are giving, I reflect that it sounds like y’all have been faithful Catholics for your whole lives. I have not been. I was out of the church for 20-something years and did not come back into the church until after I was already a lawyer. I had already practiced in different venues and I was teaching law at the University of Mississippi. And I remember vividly when I was confirmed, I made my first communion when I was 10. I wasn’t confirmed until I was in my early 30s. And I remember vividly feeling the grace of my confirmation as it impacted what I understood my vocation as a lawyer, a law professor to be. I remember distinctly thinking maybe being successful, making money or as a law professor, writing law review articles and having a comfortable easy life because let’s be honest, being a law professors easy life, right?
Is this what the Lord wants for me? Because it’s a great job. I’m sorry. You guys work very, very hard.

William Nardini:
He definitely wants it for you.

Kyle Duncan:
Very hard. Is this what the Lord is calling me to do? And I remember asking him, I said, “Is this what you want me to do? I mean, this is wonderful writing law review articles, teaching the students it’s great.” Living in a little town. We were in Northern Mississippi. Is this what you want me to do? And it turns out the answer was no. You need to do something else. Because actually my law review articles weren’t that good. I’m like Professor Alicea and Professor Walsh of course the Lord said, “No, you need to do something else.” And sure enough, then I found myself going back to government, and then I found myself at the Beckett Fund, and then I found myself at a table with Professor Walsh talking to this potential client in these religious liberty cases.
And the Lord, I found a huge difference in my life when I started seeing my life in terms of, Lord, what do you want me to do? As opposed to how can I make the most comfortable life I can for myself? Which I think is, that’s something that tends to motivate lawyers. How can I make a lot of money? And yet we hear there’s a crisis of meaning in the law, in the practice of the law. So I guess trying to translate that into now what we do, which is being a judge, we obviously don’t open up the catechism to find out how to rule. I’m not even tempted to do that, right? That’s just not going to help me rule on a bankruptcy case or a 1983 case. And yet your faith, you don’t leave it at home. It has to inform how you do your work. So how does it inform how you do your work? What do you think?

William Nardini:
Well, I think it makes us take our job seriously. And if you want to plug it into some of the ways that we think about how we should be good Catholics, I think of charity, take charity, which is one of the main things that we are supposed to embody in our lives every day. How can you embody that as a judge? Well, it can’t be in the form of sympathy, right? It can’t be, well, I feel bad for this litigant who’s had it rough, so let’s rule in their favor. No, you’ve got to follow the law. And we take an oath to that effect. But how can charity map in to how you do your work? Well, it can mean reading a party’s arguments as charitably as possible. In other words, to understand what they are saying, to take the time to understand what they are trying to argue to the court, and not being dismissive of them without fully giving them the time to make themselves understood.
And I put it this way, one of the things I like to do a lot when I’m in oral argument is to say, “Well, let me just get this straight. Your brief is a little unclear, but is your argument as follows?” And I will try to as fairly as I can, and honestly as I can characterize what I think they’re arguing, so that I have not misunderstood what the scope of their argument is, and then I allow them to correct me. They can say, “Oh yeah, no, that’s exactly right. That’s what I’m trying to argue.” Or they can say, “No, actually Your Honor, that’s not it. There’s this other twist that you’re missing.” So I think if we give ourselves that extra push to make sure that we are not putting words in somebody else’s mouth or making assumptions about what they’re trying to say, but really being charitable to them in the way that we understand and we’re listening to them, I think that’s one thing that we can do to make sure we’re doing our jobs well.

Kyle Duncan:
And you and I have to see Judge Ruiz, he just gets to rule. It’s just him. We have to get along with other people. And we may not agree with them all the time. Often, I mean in most cases I do agree with my colleagues no matter who appointed them actually. But sometimes we disagree and boy, charity comes into play when I have to, I feel very strongly, no, this is the right answer. And some colleague to my right or to my left on the three-judge panel may say, “No, no, you’re exactly wrong.” And one has to call on deep reserves of charity that I don’t always have in order to say, “Okay, I respect you.” And to mean that. “I respect you, as I disagree with you, but I do respect you.” I find that often happens. Judge Ruiz, what do you think?

Rodolfo Ruiz:
Well, it’s funny because I think that having a multi-member panel, having someone next to you can also serve as a bit of a check. As you all know, we are shoot first a little bit at the district court and we don’t have that counterbalance, if you will, of figuring out if this is the right answer. But what that does is I think it emphasizes Judge Nardini’s point even more so because really what I think he’s touching on is a sense of judicial humility. And that is I think at its core what we learn in our faith. And by that I mean not humility in the more constitutional sense of judicial restraint. I mean truly from a virtue, from a Gospel of Luke, Gospel of Matthew virtue, I mean what we’re talking about in Christ’s teachings of trying to espouse humility in your daily life. As a district judge, you have to listen. You don’t have, for example, another judge there that might be able to steer you in the right direction, or at least you can check and cross-check your position with.
And I will be frank, as judges with volume, when you have a lot of cases and you’ve seen your 7,000th FLSA for Labor Standard Act case, or you seen your 200th ADA case or your Fair Debt Collection Practices Act case, whatever alphabet soup case you want to have, that is a good 30 to 40% of my docket or a slip and fall on a cruise ship, which is a maritime case that we get down in South Florida and Miami, of which we have thousands of them. You see those cases and you think you’ve seen it all. You think you’ve seen it all. I tell my lawyers, “I’ve seen this fact pattern a hundred times.” I know it’s a constructive notice issue and this, and we’re just going to, and that is something you have to be very wary of. Because what that does is it’s an absolute lack of humility. It’s just I’m going to assume that I know better than the litigants. I’m going to go out there, I’m going to pull the trigger, I’m going to keep it moving.
And the reality is, there’s so many times that if you give yourself that space, I always think of the pastor at my church. I used to always say to him, “When you go out and you give your sermons, how much do you write?” And he’d say, “Well, I write almost all of it, but I leave a little room for the Holy Spirit for when I go out.” And I thought that, I said, okay, well that humility leaves that space. You think you know where it’s going to go, but you do a little bit of what you just heard judge Nardini say, you do a charitable reading of the arguments. You try to understand where they’re at, but you leave the space you need to listen because in listening, you’re going to reach a better decision.
And it might be rare, Article III judge saying, “We’re not the center of the world.” But we’re not the center of the world. We really are not. And we make mistakes, certainly the district court level with the volume and the speed. We don’t have the luxury many times of being able to deliberate on things as long as we would like. And so keeping a sense of humility as a Catholic virtue to me, it promotes listening. And good listening means better judicial decision-making. And that is such a huge part of something that not informing the decision, right? But it is a core value or virtue from our faith that helps us do a better job in our vocation. And so that to me has been something that I try to remind myself.
I’m sure I do it better some days than others, but it’s so vital that we keep that in mind because it is very easy to jump the gun and assume the position because seen it before. And there have been moments where I’ve been very surprised. There may be a wrinkle in the fact pattern that I was not appreciating in the papers, and I discern it when I’m there in oral argument. And I would not be able to do that if I went in with my mind made up. So that’s that key component of keeping that open mind.

Kyle Duncan:
Well, how about this, I’m not sure this has happened to either one of you, but a case comes before you, very, very difficult. You’re not 100% sure of what the right answer is. And you know that whatever you decide it’ll be on the front page of the New York Times tomorrow, and you will be deeply criticized no matter what you decide. What then?

William Nardini:
You suck it up.

Kyle Duncan:
Well, yes,

William Nardini:
But no, I’m serious. I mean, I think one of the things that we have to do-

Kyle Duncan:
So fortitude.

William Nardini:
Yeah, fortitude. I mean I think one of the things we have to understand is our job is to do what may be unpopular. I mean, that’s one of those things. And I’m reminded, now, I went to a Catholic high school, but my sisters all who were older than me went to a different Catholic high school one town over. And I remember that they always said that this was the motto of DePaul High School in Wayne, New Jersey, if to be right is to be different, by all means be different. Now, I don’t know why I remember the motto of my sister’s high school and not my own. My mother used to repeat this all the time. And I think that we as judges need to have that in mind that our job is not to be popular. And of course that’s a fortunate thing that we have life tenure. We don’t have to worry about getting re-elected. So we should be putting our self-interests aside. Maybe we won’t get invited to as many law schools to give speeches again.

Kyle Duncan:
I think it’s overrated.

William Nardini:
Well, some of them are pretty nice. This would be a great sacrifice.

Kyle Duncan:
This one’s great.

William Nardini:
A great sacrifice if we miss this. But I think we do need to, right from the get-go, just realize, suck it up. And that could also mean being very unpopular with some of our colleagues.

Kyle Duncan:
That’s right.

William Nardini:
Who may, honestly and legitimately have a completely different view of the law. So just because they disagree with us doesn’t mean that they have ill motive. It could just mean that we’re just taking a different view honestly, of where we think that the law requires us to come out, but we need to figure this out for ourselves. And whether you think of it as fortitude or one of the other virtues, it’s something that we just have an obligation to do.

Rodolfo Ruiz:
Yeah, I mean, I would agree. I think it’s fundamental to our role that we make these rulings of course, without fear of favor. And we know that there’s definitely not a popularity contest. I mean, that’s not something that we signed up for. And I do think that faith strengthens you in those moments, certainly. Not because it’s going to impact your decision. You’re going to do what the law dictates and you’re going to reason out your decision. But invariably being human, knowing that there will be fallout, you have to have that faith that you know you’re reaching the result for the right reasons. You’re approaching the law correctly, and you’re not in it to get glowing reviews. That’s not what we signed up for.
And more often than not, we don’t get those types of reviews, but I think our faith teaches us that we don’t let the popularity of the moment sway us. We’re not chasing fads. We are really tethered to a truth. It’s what we’re grounded in as Catholics. And so I think that that kind of reminder that a prayerful life, a life in faith enables us when you go through those moments to not feel like you’re walking alone, whether there’s a colleague with you or not, Christ is always walking with you. Your faith is with you, but it is a strengthening component. I think that helps certainly in those difficult moments reach the right decision, by far.

Kyle Duncan:
Amen. Should we have some questions, professor? Or not.

Speaker 5:
Thank you so much, Judges. So my question, a few weeks ago, the other center on campus, well one of them, the Center for Law and Human Person invited Father Dominic Legge from the Dominican House of Studies over. And Father Legge gave a really fantastic presentation about the role of morality in the law and kind of viewing the law as a teacher in the more classical sense. So we’ve talked kind of about maybe what I would qualify as sorts of procedural virtue when it comes to justice from the bench, whether that’s charity and considering both sides, humility and going into arguments and listening to them with a fresh mind, so as not to come in with a prejudice. But I was curious what each of your thoughts are with respect to the extent that morality can inform the actual substance of the law and decision-making, that sort of thing. The limitations of positive law kind of is a bundle of questions, but…

Kyle Duncan:
Okay. That’s a big question. Who wants to go first? Not me.

Rodolfo Ruiz:
I don’t know if it’s so much informed by morality, but I’ll tell you an area where you move a little bit more away from the law, at least for me, is in sentencing. So I’ve listened to the last year four events, and I think every judge that has spoken here, my friend Judge Packold, I know in the district court in Illinois, I know Judge Bianco, Judge Sullivan have all mentioned application of sentencing guidelines, 3553 factors. And you start to move a little bit away from the law into that kind of gray area where we have what we call the parsimony provision. It’s what is sufficient but not greater than necessary. I mean, that is an unbelievably difficult determination for any jurist.
And there’s so many times where going back to the comments of humility, where having a sense of by the grace of God go I, and looking at someone, looking at the experiences and some of the difficult broken humanity that we have to engage with and we’re trying to work with every day, some of the backgrounds of individuals who come through our court system, requires us to have such a delicate balance in figuring out what is the right sentence for this person while also doing justice. So I don’t know if it’s necessarily that morality seeps in, but there’s certainly a balance. You’re required to take into a number of statutory factors that do it every single time. But even after you’ve exhausted all of those factors and you’ve looked at every mitigating circumstance and every aggravator, whatever it may be, there is always that kind of gray area where you’re trying to figure out this person in front of me, what amount of time do they need?
Are they someone that’s going to reoffend? What message am I sending? What kind of specific deterrence do they need? Have they received all the specific deterrents they need? And maybe now we’re dealing with only general deterrents. There’s so much of that, and I think at least in my world, that’s probably where some of that starts to seep in. And it’s a very, for me at least, and I think most judges will tell you on the district level, the hardest thing we do by far. And the moment where the most, I think the gravity of the responsibility that you’ve been blessed with hits you the hardest. And I carry all those sentences with me. Students come and wonder, “Oh, what is it like after you sentence?” And I say, “You lose sleep, you have to move on. But if you’re just working by way of numbers, if you’re scoring people on a guideline chart, and you’re just assigning numbers to criminal history and dealing with how they score, you need a vacation, right?” You’ve lost a sense of the human in front of you.
And I always share that when I was a brand-new judge, they took us to FCI Richmond, not too far from here, where we met with a number of individuals who were doing life sentences. And I thought it was so interesting. They had all accepted responsibility. They were in there for the rest of their lives. We met with all of them and to a tee, every single one. The only thing they wanted to talk about was the imposition of sentence by the judge. And now they were hanging onto that moment because they were treated as less than human. And they asked us as newly minted judges, “Whatever you do, we earned it. We deserve it. We have to go away, whatever it is. But when you impose, we’re still human. Do not let it define the entire arc of my life. I made a mistake, I will pay for it.”
I have never forgotten that. I think it’s such an important thing, no matter how difficult the circumstances, no matter how many victims are in the courtroom, and no matter how horrible the offense may be, when you dehumanize the individual, not only does it run afoul of what the guidelines tell us to do, but even from our own faith, right, about what we’re supposed to do, and we’re trying to see that human, and the face of Christ in everyone. So it is challenging, but I think that’s probably the one area where to the extent it informs, it doesn’t deviate from the statute, but it’s certainly something you’re trying to capture what you think is correct, and some of that can have a morality angle to it.

Kyle Duncan:
Well, the whole idea of being a judge, right? If you believe in the New Testament, where the Lord himself says, “Judge not.” So you have to reconcile yourself. What are we doing?

Rodolfo Ruiz:
Right.

Kyle Duncan:
I mean, we are judging. It is our job to judge, but we’re not going to do what the Lord said not to do. And that’s the ultimate, to judge somebody in that sense is to say, you deserve to go to hell, right? We are not doing that. We should not do that. That’s not what, I don’t have to sentence people, but that’s not what you’re doing when you sentence someone. What do you think, judge?

William Nardini:
I think as appellate judges, we are in a different position because I think that our district court colleagues have that difficult job of imposing sentence. We don’t, we are sitting in review, which is really at quite a distance with a much more differential standard of review once it gets up to our level. So we don’t have that sort of encounter in a daily moment. The place where morality comes in, as you said, into positive law, really comes through the political branches. Congress is going to pass laws and they’re going to make all sorts of substantive value judgments all the time. Even our constitution makes value judgments. Why do we have a First Amendment that protects speech? Well, that’s a value judgment that was made by the framers, and by the people who ratified the Constitution. Plenty of value judgments are going on in the political branches. When it comes to us, we’re not there to second-guess them unless we are going to say that say, in executive judgment of values is contradicted by what’s in the Constitution.
And we say, well, that value judgment wins. So we’re examining value judgments and where certain of those are brought into the law, but we’re using some yardsticks that have already been provided to us. What I think is important is to follow-up on something that Judge Ruiz said is looking at people as individuals. I think this goes back to what you might think is a very sterile provision of Article III. What is our job? What is the judicial power of the United States? It’s to resolve cases or controversies. Well, what does that imply? When you look at Stani and Mucha’s doctrines and all, it means that there are people on both sides of the V. It means this case matters to somebody. People who have come in before us. And it could be something that we think, this is something we see all the time. One of these alphabet soup lawsuits, and we think, ah, a dime a dozen, we see a million of these. But you know what? That one case to the parties who were before us, this could be the single most important thing in their lives right now.
I mean, how many people are in court? I mean, how many of you, don’t raise your hand, have a lawsuit going on right now? Probably not that many of you. But to someone who’s got a lawsuit, this could be everything. So if we pay attention to the fact that we have real people whose lives are really impacted by whatever the case is, civil, criminal, administrative appeals, we are making sure that we are respecting who they are, and that this is something that matters to them. And then I always think back to the Beatitudes, and I don’t know, maybe it’s wishful thinking on our part, but the idea of blessed are the peacemakers. The whole project of justice and law upon which all of you are embarking is a critical one. Because the law is a way that we find peace in our society.
Because you go back to the state of nature, if you disagree with somebody, what do you do? You bop them on the head and whoever’s strongest wins. And we have decided through the social compact that we have a better idea. That we’re all going to come up with rules of behavior. And if we think that someone has violated those rules, we will not resort to force. We don’t bop each other on the head and whoever’s strongest is going to win. But what we’ll do is we’ll come to neutral arbiters, and we’ll argue our cases civilly. And then our job is to try to work with those rules to figure out how they apply and then say, “Okay, this is how the rules play out.” And I think that’s why everybody who has a role in this, whether as lawyers or judges or otherwise, you’re all playing an important role in that job of being a peacemaker. And when you think about the law in that framework, I think it can be a very rewarding way to live your life.

Kyle Duncan:
I agree. I agree very much.

Rodolfo Ruiz:
Absolutely.

Kyle Duncan:
Should we have one more question?

Speaker 6:
This is for the whole panel. I’m curious to know any particular saints that have served you through intercession during your career and also any recommendations for spiritual reading. Thanks.

William Nardini:
Good. You got it? I probably am most in need of St. Jude, most of the time, patron of lost causes. So I don’t know.

Kyle Duncan:
He’s busy on the Fifth Circuit.

William Nardini:
I will say, and this is like most good litigators, I’m going to tweak your question. One person to whom I have looked is not a saint, although I hope he’s going to get there. He’s Blessed Michael McGivney, who’s the priest who founded the Knights of Columbus and of course we’re a little biased because I’m in New Haven. And he’s from, well, he’s actually from Waterbury, but he’s basically from New Haven and he’s buried there.
And I think that there’s something that has really always resonated about the mission that he followed when he was in life serving the widow and the orphan and forming the organization, the Knights of Columbus. That has been very important right here for this law school. My father was a devout, very committed member of the Knights of Columbus. And at the end of his life, he was an insurance agent for it. So I’ve always felt this particular connection, I think, to that very special calling that he had. And he died actually relatively young, unfortunately. But it’s amazing to see someone that young who has made that long and lasting an impact and throughout my family and throughout my life. And I just think that, I don’t know, he’s not a saint yet, but when there’s a canonization and I’m going to Rome.

Kyle Duncan:
Yeah.

Rodolfo Ruiz:
I would say we just actually went to the shrine earlier before he came over here, St. Pope John Paul II. And I think it’s because of my age and where growing up to me, he was such a force for change. So I’m the first American born in my family. Both of my parents are Cuban exiles. They fled Castro’s communism in Cuba. So my mother came over in ’67 on the Freedom Flights. She went to a beautiful all girls Catholic school in Havana, Cuba that was shut down by the Castro regime. Some of you may know that after the revolution in ’59, one of the first things that the regime did was get rid of all the clergy, nationalize many schools, but many of them, almost 250 Catholic schools were shut down and taken over by the regime. Next thing came in declaring the state atheists in the 70s with Marxist and Leninist philosophy. And so when my parents fled, my mother on the Freedom flights in ’67, my father actually came over on Operation Peter Pan, and I encourage you to read it.
It’s actually an operation that took about 14,000 unaccompanied children out of Cuba in ’62. He came over without his family, and it was actually in large part organized by the Catholic Church. Monsignor Walsh was the head of the Catholic Charities who actually help orchestrate to save children from being indoctrinated by communist ideology. Both of my parents came over with absolutely nothing. They pretty much only came over with their faith. And began their lives anew in this country. And so as I was raised, my faith formation drew a lot on their experience and their faith that got them out of Cuba and got eventually my grandparents out of Cuba as well. Throughout that time, he was such a force St. John Paul II in terms of not only from Poland and Eastern Europe, but what he did in terms of communism, culminating in 1998, he was the first Pope to visit Cuba when Castro was still in power. And I remember him visiting Miami as a kid. And I mean it was football fields of individuals there. Most of the Cuban exile community had a love for him.
And it’s just one of those things that it’s kind of the Pope you grew up with, I guess is one of those things. And so my wife and I made a point to go to the shrine, before we came here today, we had not been able to visit it before. And it was just a reminder in terms of praying for intercession that, and then one that I think, I don’t necessarily know if in terms of the same, but San Michael the Archangel for me, which was my confirmation saying, and to me with what we do, the San Michael prayer is recited often in my home with my children, with my wife who’s here, and also a lawyer. And that’s just for the strength. That’s for the strength because you do see things in court that they test you, and you need to be able to draw on that strength. So both of those I think would be the key folks that I pray to for intercession, things that I pray for intercession.

Kyle Duncan:
Just very briefly, because we’re out of time, but St. Josemaria Escriva and St. Francis de Sales were both trained lawyers. They’re good intercessors. My patron saint is St. Thomas Moore, obviously. And go visit at St. Joseph’s church on Capitol Hill. There’s a statue of St. Thomas with the Axe, and there’s a prayer to St. Thomas Moore at that statue that’s been extremely important for me and it got me through my confirmation hearing. With that, let’s thank the panel members. Thank you very much.

William Nardini:
Thank you.

Kevin Walsh:
Thank you guys. Thank you guys.

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Angela Sullivan