Of Originalism, Political Polarization, Tolerance, and the Importance of Talking to the Other Side

 By Eric Segall

Last Friday and Saturday I attended the 13th annual Originalism Conference at the University of San Diego. There were seven papers presented by legal academics and discussed over two days in a room full of approximately 45 self-identifying originalists, two non-originalists (myself and Professor Tom Colby), and one person who as a matter of self-identification straddles the line (an ice storm in the Midwest and Covid issues led to slightly fewer non-originalists at the conference than usual). For the record, my guess is that most of the professors there were members of the Federalist Society, though that organization had nothing to do with the conference. 

I commented on six of the seven papers and, as you'd expect, most of what I said was critical of originalism in general and the way the papers used originalism in particular. Although there was the expected pushback from almost everyone in the room, the conversations were friendly, civil, and I think helpful to the presenters. In any event, the debates helped me get a better understanding of numerous legal issues and how originalists viewed them. There was also substantial and robust debate and disagreement between and among the 45 or so originalists, all in the service of healthy academic discourse. 

I am pretty sure Professors Michael Rappaport and Michael Ramsey, who run run the program, would appreciate me saying the conference is open to all and non-originalists and anti-originalists are more than welcome to attend and are even appreciated. Given how much originalist discourse is going to (sadly) be presented to judges in the future, I recommend this conference highly to everyone, especially those who believe, as I do, that judicial focus on originalism is quite undesirable. 

All of which brings me to Ilya Shapiro, Elie Mystal, the Federalist Society, and our current state of social media and academic discourse.

If you are reading this blog, you likely know that Ilya Shapiro, who was hired by Georgetown to run its Constitutional Law Center, issued an unfortunate at best, racist at worst, tweet after President Biden affirmed his campaign promise to nominate a Black woman to the Supreme Court. Shapiro thought Biden should nominate a particular South Asian male judge and then tweeted that his choice "doesn't fit into the latest intersectional hierarchy so we'll get a lesser Black woman." Of course, Biden hadn't (and hasn't) named anyone yet, so there was at least an implication and maybe even a suggestion that there is no Black woman in the land as qualified as Shapiro's choice. Shapiro offered a semi-apology but is currently on administrative leave while Georgetown decides whether he may keep his job.

There is little doubt in my mind that Shapiro should not be fired for his tweet, despite the fact that I found it offensive. As Professor Colb wrote in this space on February 7: 

I oppose the move to fire him for what he said. Sharing thoughts, including stupid and offensive thoughts, is what professors do. Having the freedom to get things wrong is what enables professors to sometimes get things right. Idea people need a 'safe space' in which to think and write and speak, and firing people for what they say creates the opposite of a safe space. 

In addition to Professor Colb's reasons, I would add that colleges and universities that lean left, like Georgetown University Law Center, need to be especially careful punishing non-left professors for their social media and other speech. Not only do such speech restrictive policies lead to "snowflake" responses from the right, but more importantly, they send the wrong message to a generation of students who appear to react quite negatively to speech the students disfavor. Instead, these students should be taught to address speech they don't like with civil counter-speech and real world discussions where the ideas freely flow back and forth. Our entire country needs to air out more space for contentious disagreements without punitive censorship from governmental organizations, private educational institutions, and especially people on social media websites--which brings me to Elie Mystal. 

A few weeks ago, I wrote a positive review of a new book on the Fourteenth Amendment written by Professors Randy Barnett and Evan Bernick. People who are familiar with my work know that I have been quite critical of Professor Barnett's work in the past (and still am). But for the many reasons I gave in my review, I thought this book was quite good and people should read it (whether they agreed with the book's conclusions or not). Then the trouble started.

Elie Mystal is a writer for The Nation and a frequent guest on MSNBC. His twitter feed has 350,000 plus follows. For the purposes of this post, it is important to know that he is a progressive African American who, like me, has very little if any use for originalism. After my review came out, he tweeted the following: "My desire to read 'White guys whitesplain the 14th Amendment' is pretty low." We had an additional back and forth where I made clear that I wasn't saying I agreed with all the conclusions or methodologies in the book, but I thought it was still excellent, and Mystal made clear he would not read the book or for that matter my review for several reasons, including his negative opinions concerning Professor Barnett.

There is a lot going on here. I don't know and couldn't find out what Mystal meant by "whitesplaining" the 14th Amendment but it turns out that Barnett and Bernick favor giving Congress much more authority to redress civil rights violations than the Court allows under current  doctrine. Had Mystal, who would definitely approve of that proposal, read my review (or the book) before commenting, he would know that. Maybe he meant he is not interested in what "white guys" say about the 14th Amendment at all. But if that is his point, it is quite obviously troubling for many reasons not the least of which is that many "white guys," including this author, have written a lot about how disturbing it is that the Court rewrote the 14th Amendment in the late 19th century to protect big business instead of the newly freed slaves. I would like to think the ideas themselves, not the person espousing them, are what is important.

I declined (up to now) to make this controversy more public than it already was (a little but not very) because I like much of Mystal's work and, frankly, I was shocked that he would condemn me and my review of the book without addressing any of the issues raised by my review or the book. But just imagine a writer for a major national magazine and television personality saying on air that he is not interested in what (fill in the blank) White, Black, Asian, Jewish, or Catholic folks think about (pick any topic). I emphatically do not want Mystal fired for all the reasons discussed above, but such a person would likely be in big trouble.

But after having some time to reflect on Mystal's (and many other liberals') quite negative reactions to my positive review of Barnett and Bernick's book, what I really want to say is some form of "why can't we all just get along better?" Our country is so polarized politically and socially that academics and prominent media folks need to set much better examples of tolerance than they currently do. If Mystal didn't like my review or the book, I'd welcome his critiques and objections. But to dismiss both because he disagrees with Professor Barnett regularly or just plain doesn't like him is short-sighted and just plain wrong. 

My job is to discuss constitutional law and those who write about that subject as fairly as I can given my reasonably well-known subjective priors about the topic. That is all I was doing in that review. To suggest to Mystal's 350,000 plus twitter followers that I was wrong to bring that focus to this new book on the Fourteenth Amendment says to them that in this case no speech would have been better than this speech (my review). That idea is just as pernicious in motivation as would be Georgetown's motivation if it decides to fire Shapiro. 

Mystal should have engaged me on the merits (he refused) and Georgetown should deal with Shapiro in a way that brings better understanding to his harmful tweet, not shut him down entirely. In both cases, a little more empathy and understanding would be much more helpful than just trying to close it all down (to be clear I am in no way comparing my disappointment with Mystal's tweets with the possible firing of Shapiro. Obviously the latter is much more serious than the former).

All of which finally brings me to what is a difficult issue for many left-leaning law professors: should we participate in Federalist Society events, given that the leadership of that organization strongly supported Trump after he won the GOP primary in 2016 and the Society's Executive Vice-President took a "leave of absence" to work for Trump picking judges, many of whom the left dislikes on the basis of age and resume in addition to politics. On my Supreme Myths Podcast last week, I asked Professor Mark Tushnet that question. He said he still goes to Harvard student Federalist Society events but would not accept an invitation to a national event because, in his view, that would be similar to attending a GOP convention, something he would not do. My good friend Dean Erwin Chemerinsky will no longer do Federalist  Society events either.

Other than retired Judge Richard Posner, Tushnet and Chemerinsky have been my most important mentors and I regard both men fondly and warmly (and with gratitude for all they have done for my career). But I think they are wrong here. Boycotting Federalist Society events sends a message that there is nothing there worth listening to or, even worse, that civil discourse between and among folks with radically different political views is not important enough to offset the harm that most liberal law professors think the Society has done by supporting libertarian and conservative causes generally and Donald Trump specifically. The Federalist Society events are happening anyway and I'm not sure what benefit there is for the left for some of our most important voices to refuse to participate. More importantly, such a position might suggest to some or maybe many that avoiding speech is better than adding your own speech to the mix. If such a boycott might lead to the leadership of the Federalist Society changing their policies that might be a reason to do so, but I think we all agree that is simply not going to happen.

We need to listen to people who disagree with us, even to those who do so strongly, much more than we need to surround ourselves with people who think just like us. That is why I went to the Originalism Conference full of people with whom I mostly disagree. It is in those fora where I learn the most, and maybe, just maybe, do the most good.