Henry Monaghan: A Curmudgeon With Integrity
Henry P. Monaghan died last week. He was a towering figure in Federal Courts and Constitutional Law. On Verdict, I have a new column that describes the ongoing relevance of two of his better-known law review articles, but that barely scratches the surface of Henry's output.
Henry did very important work on the overbreadth doctrine, first articulating the proposition that everyone has a right to be judged by a constitutionally valid rule of law. He explained how the concurrence in Bush v. Gore was less of an outlier than it appeared in real time, placing it within a line of cases in which the Supreme Court reviews state court rulings of state law non-deferentially in order to protect federal interests. He gave coherence to a wide range of SCOTUS practices that seemed unmoored by conceptualizing them as "constitutional common law." He grappled comprehensively with the relation of supranational courts to domestic doctrines limiting the Article III judiciary. And much much more.
As I note in my Verdict column, I didn't agree with all of the positions Henry took, but I always learned from his scholarship. And I also learned a whole lot from Henry as a person. He was my colleague for the 13 years I was on the Columbia faculty. I am sad to say that I didn't remain as close with Henry as I ought to have after I left in 2008, but whenever I had occasion to reach out to him, he was always obliging with valuable insights. Here I'll offer a few thoughts on what I learned from Henry the human being.
Henry had a fairly well deserved reputation as a curmudgeon. Like most outward curmudgeons, however, Henry was more complicated when you got to know him. His curmudgeonliness was not exactly an act, but it was hardly the whole person. He didn't suffer fools gladly, to be sure, but he could be extraordinarily generous with his time, willingly mentoring junior faculty, including many who sent him drafts over the transom. He also had a wicked sense of humor.
Henry could be scathingly blunt in his assessments, but interestingly, he was almost never that way in print. Our Perfect Constitution, which I discuss in the Verdict column, is probably the snarkiest of his published work, and it isn't all that snarky. All of criticisms are ultimately on the merits. Moreover, most of Henry's written work wasn't snarky at all. People who knew him only from his writing may have been surprised to learn that he had a reputation as a curmudgeon. Conversely, those who encountered Henry in person but hadn't read his work might have wondered whether he had a gentler alter ego who produced his scholarship.
Henry was aware of the duality. On more than one occasion he told me that he made every effort in his writing to stick to the merits and give those with whom he disagreed the benefit of the doubt. He was, he said, the opposite of Justice Scalia, who was generally charming but could be brutal to his colleagues in his opinions, concurrences, and dissents. Henry expressed befuddlement at Scalia's own duality. Why, he asked, be gratuitously mean when you had time to reflect on what you had written and tone it down?
To me, that question revealed something fundamental about Henry. His in-person barbs did not reflect the better angels of his own nature. Given time, he would tone it down, but in the moment, his sharp mind and wit perhaps raced ahead of his super-ego. He called it as he saw it.
On more than one occasion, after reading a draft of one of my articles, Henry would tell me something like this: You have a talent for persuasively stating the view that you intend to critique and disprove. I'm persuaded more by your statement of that view than by your argument for your own view.
It was a dig but also a compliment. More than any other quality, Henry had integrity. It's what sometimes led him to speak his mind when judicious silence might have been more tactful. He disdained straw-man arguments, so in telling me that I was creating what we now call "steel man" arguments and engaging in charitable interpretation, he was saying that I was being intellectually rigorous, even if he thought my own position wrongheaded.
Finally, I'll add a word about Henry's politics because people who didn't know him may have the wrong impression from his work. Henry was intellectually conservative but politically mostly liberal, a New Deal Democrat through and through. But politics for Henry seemed to matter less than intellectual rigor. He was a scholar's scholar. We are all the worse for his loss.