David French (26:40)
Nobody had that on the. No. And so. But FedSoc, yes, you were a small group of people who were sort of against a larger culture or felt embattled by a larger culture. And that did create that kind of band of brothers and sisters sort of mindset. But there were two things that the Federalist Society did that were very important. Number one was they engaged the community through debate. So FedSoc was about the only place for a very long time. And I think law schools have improved, they've gotten better. They're about. The FedSoc was the only place for a very long time where law students could hear a conservative legal perspective. And the way that they would do it is they would set up a Debate. And it wouldn't. Usually wasn't. It wasn't anything like, you see, you know, I used to be on that debate circuit and nobody would ever think my goal is to have a viral moment. So it's like David French owns liberal professor. No, nothing like that. It was really discussion, it was dialogue. But it was the only place where students could see conservatives and liberal law professors, practitioners in conversation with each other in a serious way, where conservative ideas were taken seriously. And there would be times back 15 years ago where I would get on the road and I would just go to law school, after law school, after law school and do these FEDSOC debates. And I think they were incredibly valuable. I interacted with a lot of deans who were very grateful for it because it was, it enriched the intellectual life of the school. And then so you have the method, which was debate centered, very respectful, but very, you know, you were firm in your convictions, but you were respectful in your argument. Combine it with the band of brothers and sisters and then an idea originalism that is easy to articulate. It is easy to explain originalism in a lot of ways when you know it and understand it. It's a pretty easy philosophy to depend, to defend when it comes to law because it's rooted in text. And when people think about law, they think about text. And one of the reasons why I, in my view, a lot of the liberal philosophies have not taken hold is because they have de emphasized text. And so it's a kind of a heavy lift to get to somebody and talk about law when you're de emphasizing text. And so in just a normal, average, everyday person, one of the first questions they're going to ask about a law is what does it say? What does the thing say? And so Federalist Society had a very good answer about what is our legal philosophy? It's rooted in the words on the page. And what do the words on the page mean? And so I found this article interesting because of the philosophy I thought the going forward. Let me put on my hat if I was going to advise the ACS right now. Here's how I'd advise the acs. I'd say, forget this living constitutionalism stuff. Forget positivism. Here are two ideas that I think you could really land on that could resonate. One is Aquila Mars liberal originalism. And what liberal originalism has going for it is it has all of the advantages of original originalism. It's text. And then you're adding into the fact that if it's Text, history and tradition. I guarantee you what we've talked about until we're blue in the face on this podcast is that the history is really messy. And when you get liberal scholars doing liberal originalist jurisprudence and liberal historians looking at history with an eye towards jurisprudence, you're going to find a lot of things in American history and a lot of laws in American history that are quite supportive of liberal ideas and liberal interpretations of constitutional provisions. But then the other one is, and I don't hear this talked about much, but it was all the rage. It was the alternative to critical theory when I was in law school. And it's called dworkinism or interpretivism. And essentially what dworkinism or interpretivism says is it says what the Constitution is doing is it's articulating some very powerful moral principles so the text really matters. Due process. You view due process as a moral principle. Free speech is a moral principle. And the laws are derived through precedent from that moral principle. It looks at the Constitution less like a statute book as a statute, and looks at it more like, say, the mission statement of a corporation. This is who we aspire to be. And then precedent works out that moral principle. So I think both of those have an advantage over other more liberal jurisprudential philosophies of centering the text. What does the law say? And then you're moving from that standpoint. I don't know that anyone's going to take my advice on this, but I actually do think that if you're wanting to formulate an alternative to originalism, which I never in my life thought it would become like the world destroying super death star of legal philosophies. I mean, we always thought of ourselves as the Rebel alliance, you know, like we were looking for the exhaust port, like that was. That's what we were doing. But if you're laughing, then you're one of my people. And so I do think that I never thought we'd reach this point, but I think that the power of the originalist argument is really rooted in and it connects with how people already think about law. It doesn't contradict what people already think about law.
