William Baude, "An Introduction to the Federalist Society"

William Baude is Neubauer Family Assistant Professor of Law at the University of Chicago Law School, where he teaches federal courts and constitutional law. His current research projects include papers on constitutional law, legal interpretation, and conflicts of law, and his most recent work includes "Constitutional Liquidation" as well as a new edition of the textbook, "The Constitution of the United States." He is also a Program Fellow at the Hoover Institution, an Affiliated Scholar at the Center for the Study of Constitutional Originalism, an adviser to the Third Restatement of the Conflict of Laws, and a sometime contributing opinion writer at the New York Times.

Presented by the Federalist Society on September 29, 2016.

Transcript

Speaker 1 (00:02):
This audio file is a production of the University of Chicago law school. Visit us on the web at www.law.uchicago.edu.

Andrew Dougal (00:19):
My name is Andrew Dougal, I am one of the programming directors with the Federalist Society here at the University of Chicago. I'm going to read you a really quick word. The Federalist Society is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is not what it should be. So that's from our Fed Soc nationals, but here at University of Chicago and nationwide, the Federalist Society is so much more than that. It's a community where we can engage in the free exchange of ideas. For me personally, it's where I've had some of my closest friends in university and I'd also like to highlight just how much we love to partner with other student organizations, particularly the American Constitution Society, which we have some events coming up later this quarter in co-sponsorship with them.

Andrew Dougal (01:13):
I just want to tee off. On Monday, we have our Supreme court review panel with Tom Dupree of Gibson Dunn and Ashley Keller of Gerchen Keller Capital. We hope to see many of you here and with that, the less I talk more Professor Baude gets to talk and the more questions you guys get to ask. So I'd like to introduce Professor Baude. He did his undergraduate here at the University of Chicago in mathematics, and then received his J.D. from Yale University. After that he clerked for Judge McConnell on the U.S. Court of Appeals and then clerked for Chief Justice John Roberts on the U.S. Supreme court. And with that, thank you Professor.

William Baude (01:57):
So I just have to say, this is a little weird for me. I think until recently this talk was given by Todd Henderson. Who's like one of the people who helped hire me and then helped recruit me to come here. And before that it was given by Richard Epstein. Who was giving the talk since even when Todd was a student here. When I came to the University of Chicago as a college student, Richard Epstein was like my hero. I would come to the law school whenever there was a Richard Epstein siting just to like see him speak. And my greatest, greatest accomplishment ever was getting to agree to do a debate for the undergraduate libertarian side. And now he has the office next to mine, and I hear him speak anytime he's in Chicago. Anyway, the fact that I am like now here, pretending to be Richard Epstein is just a little weird. So bear with me. So what is the Federalist Society? You've already heard a little bit about it, right? The Federalist Society was founded in 1982. This is older, I think, than any of you. It is almost as old as me. It was founded by students, actually students at Yale and students here who created the original two chapters.

William Baude (03:04):
It now has a national organization and lawyers' chapters everywhere, but all of that basically grows out of what a bunch of conservative and libertarian and other free thinking law students decided was a good idea 35 years ago. The basic idea of it, the basic reason for it is the sense that in law schools today, it's actually, despite how much there is to learn in law schools, there is a risk that law schools would otherwise present too much of a United front, too much of a dogma, almost about a bunch of things that may or may not be right. But there are opposing views, there are other ways of thinking about it that you should hear too. So the goal is to bring in intellectual diversity.

William Baude (03:49):
To bring in ideas that might not have otherwise been around. I think that it's probably less of a problem here at Chicago than it is in some other law schools, but we have our blind spots too. And the Federalist Society will sometimes be one of the places that you'll hear ideas debated that you might otherwise have taken for granted if you weren't here. So you already heard the blurb, but I feel honor bound by my membership card. Say it again. So the Federalist Society has kind of three organizing principles, right? That the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that the province and duty of the judiciary is to say what the law is, not what it should be. And that sounds kind of, I dunno, either, either abstract or maybe the opposite, if it sounds kind of like, "Whoa, like I have to buy into all?" That not necessarily, right?

William Baude (04:40):
Those are big ideas but the real organizing principle of the Federalist Society is debate and intellectual inquiry. Real idea is that this is a place to exchange ideas. And those are some of the reasons that the Federalist Society thinks it's important-- to have those ideas, to exchange them. So since I have you here temporarily as a captive audience thanks to pizza, I feel that I've got to tell you a little bit about my view of what some of those ideas mean and some of the ways people important to the Federalist Society disagree with them. I'll say doing this, this is also a very atypical thing and that virtually every Fed Soc that I've ever been to has more than one speaker. Usually has, you know, a debate or there's somebody speaking and somebody criticizing them. So for some reason, I get to suppress dissent for just a little bit. I'm going to take advantage of it.

William Baude (05:30):
Alright. So the big ideas in, I don't know, let's do six people, right? So who kind of tell us what these ideas mean. So person number one, James Madison, hopefully you've all heard of him. You ever see a copy of the Federalist Society logo? It has this like weird profile, the old guy with with the funny hair? Well that's James Madison, the man of the logo, you can even get a tie, although I don't have a James Madison tie. But you could, right? James Madison wrote the Constitution, he created the separation of powers. So he's the separation of powers portion of the blurb, right? Madison had many, many ideas. But the one that, the one that probably lasted the best, one of those important ones he gave us was that, well, you needed to create government.

William Baude (06:16):
It shouldn't be an anarchy. You also needed to set up some way for the government to knock it out of control, to govern the government. Right. But who can govern the government? Who can watch the people in power, you know, if you set up some other government above them, wouldn't that be the government? So there must be some way to set up different parts of the government to watch each other, right? And so he said, "we've got to find some way to take these ambitious power-hungry, scheming people who will be in Washington"-- some things never change-- "and then find some way to take them and then have them watched." But other people like that who were in turn watched by other people like that. Right? So the idea was ambition must be made to counteract ambition. So we'll take all of these, all these powerful people in Congress and then we'll pick a president to keep an eye on them. But then we'll give Congress the power to impeach the president or to override the president's vetos which just happened for the first time in our current president's administration this week in order to keep the president from being too powerful.

William Baude (07:16):
But then what if they came up, right? What if the president and Congress were all on the same side and they just want to sort of gather all power into their vortex? Well, we better have some courts to keep an eye on that. But who will keep an eye on the courts? Well, we'll make sure the president appoints the judges and Congress can impeach them. And you have this complicated set of interconnected webs, which often can be gridlocked, can often be sort of slow and put the brakes on progress, right? But it's doing that precisely because sometimes, when we don't have any brakes, the train just goes out of control and runs off the rails, right? And then he added to all of that another layer, right? We've got these three different institutions, but even they might grow too powerful. So we had states, too. And so we also created a sort of complex set of Constitutional limits to make sure that the national government didn't get too powerful.

William Baude (08:04):
The States also had a role in keeping an eye on the federal government and checking it and making sure the government didn't bring in too much power. The separation of powers, in many ways, all comes out of James Madison's genius. He's sort of one of the heroes of the people who believe in the ideas of the Federalist Society, but not the only one. Right. Then we've got Alexander Hamilton. He's not on the tie, he's got a musical. Probably worth more than than the tie. So at the beginning, he and James Madison are pals. They write the Federalist Papers together. They go around campaigning for the ratification of the Constitution and have a sort of similar program. But once they get into power and start actually working in the federal government, they basically become enemies, right?

William Baude (08:53):
Where Madison thought his job under the Constitution was to keep the national government from getting out of control, to find ways to make sure people paid attention to all those limits that have been put in the Constitution. Alexander Hamilton thought his job was to start finding ways to get beyond those limits as fast as possible. Right. I think he sort of viewed those limits as things we had to tell people to get the Constitution ratified, but "come on, we're in power now, we should use it." So Alexander Hamilton immediately wrote hundreds of pages of a national economic plan of all of the ways he wanted to build out and develop the American economy. Often with creative or, or not that kind readings of the limits of Constitutional powers. He and George Washington were good friends. He was immediately on board with trying to make executive power as broad as it could possibly be.

William Baude (09:38):
He was impatient with Congress. But in a way, he was also being true to one of the principles of the Federalist Society. Actually the first principle: that the state exists to preserve freedom, because why was he doing all this? He was doing all of this because he saw that the national government could be a source of great economic freedom and prosperity that we otherwise didn't have. At the time, was looking around at state legislatures that were parochial, trying to block trade everywhere, just sort of prop up like whatever was the politically powerful local industry-- farmers in Virginia and merchants in New York. And he thought the people who are actually trying to serve with this whole system would actually themselves be freer, more able to travel, more able to carry on new occupations, to invent things, to build an amazing society, if the national government would get in there and clear out some channels so that everybody else could be more free.

William Baude (10:32):
And he was willing to be a little bit impatient with the separation of powers or the Constitutional limits if it meant that we could get freedom. It's another important strand, actually, of the Federalist Society. I think that that kind of economic freedom is also important, right? And that sometimes the national government is the way to bring that about. I'll say Hamilton was also pro-freedom in another important sense. He's one of the few founders who was anti-slavery. So, George Washington had slaves, Thomas Jefferson had lots of slaves, James Madison had slaves. Alexander Hamilton did not have slaves. He lived in New York. He was a member actually of the New York Manumission Society, a sort of quasi radical group of anti-slavery people in New York who were working to try to bring about the end of slavery.

William Baude (11:18):
So he cared about freedom on the individual liberty side, too. We don't talk about that too much, but Hamilton gets points for that too. Person number three-- or old guy number three. John Marshall, actually, all of these people are old guys. Alright, John Marshall. So he was not part of the original battles in Congress or the cabinet. Instead, he's not quite the first Supreme court justice, but the first Supreme court justice that anybody really cares about. Actually the third Supreme court justice, but he made the Supreme court what it is today. Also a sort of right hand man of George Washington, John Marshall gets on the Supreme court. One thing he quickly figures out is we should actually tell people what we're doing, what the law is. So before he was there, the judges would decide cases by all, just kind of laying out their own reasoning in order.

William Baude (12:13):
And they wouldn't even like figure it out amongst themselves, like what they agreed on or whether they agree. They would each kind of say what they thought. And then your job was to come along later and say, "okay, now wait, is there anything that all five of them agreed on? You know, three of them went this way, I guess, they put it this way, but the three don't have any reasoning in common." And they also just did it orally. So there was some person who wasn't even a government official who's job it was to sit in court and try to write all this down. And then afterwards he distributed his notes to all the lawyers so they could try to guess what the law was that had come out of that ruling. Right? So John Marshall said, we can do better than that. We can all get together as a court and actually figure out what we're going to do when we rule.

William Baude (12:51):
And then we'll tell them what our view is as a court. We'll compromise a little bit. Maybe there'll be some dissents, but we will actually sort of be an institution and have a view. And then once you're doing that, right, once you're gathered together in advance, you can actually write down what you're going to say. So you, aren't just kind of like making Constitutional law up from the bench literally. Right. But you've actually taken the time to try to craft some reasoning, put something together. You could share it with the reporter who's going to be in court. So that then he knows what the law is that you've made. Right. We take this for granted but I promise your case loads would be like way longer and way worse if we still did law in the old pre-Marshall way.

William Baude (13:33):
Now, John Marshall also did something maybe even more important, which was that he stood up for judicial review. If you have read one case before coming to law school, it might've been Marbury versus Madison. If not, I'm sure you'll read it 10 times before you graduate. But it's an old case in which the Supreme court, through John Marshall, says, that when Congress passes a statute that is unconstitutional or the president does something that's unconstitutional, the courts get to step in and say it's unconstitutional and stop it from going into effect. This is not something John Marshall made up. This has been around and legal practice for a long time before that. But people weren't really sure whether that was going to be part of the new constitutional system. And they really weren't sure whether anybody on the court was going to have the guts to actually do it early on when the president and Congress might try to punish them for it, might try to remove them from office or shut down the court, not confirm new members or whatever it might be. So John Marshall picked a fight with Thomas Jefferson, in some ways, went out of his way to find an excuse to talk about judicial review and said "it is emphatic of the province and duty of the judiciary to saw what the law is." The quote actually comes from John Marshall. Our job is to strike down acts of Congress that are unconstitutional because our job is to say what the law is and the Constitution part of the law.

William Baude (14:53):
I'll note, also, that John Marshall doesn't get as much credit for this, but the next part of the quote is "to say what the law is and not what it should be," right? One of the risks of having courts review acts of Congress, one of the risks of having courts review what the president does, is they might start to think of their job as being kind of like a second Congress or a second president. That anytime they don't like a law or if they would have done something different as president, they should strike it down, right? You've got the power. Why, why shouldn't they use it?

William Baude (15:23):
And so Marshall was actually also careful about trying to set some precedents and some boundaries for how to use the power. When John Marshall reviewed acts of Congress and engaged in judicial reasoning, you know, now he had an opinion of the court he'd written it down. He would always try to trace it back to like basic principles of legal reasoning, to the text of the Constitution, the precedents that have been decided in the text of the Constitution, the history. So this was to sort of ground of what the court was doing in law to make sure that they were saying what the law is and not just kind of creating our own Constitutional law.

William Baude (15:58):
So three different founders, three different elements of the Federalist Society's mission all kind of contributed to today. Alright, I've got three more. So now the 20th century, three more judges who've taken these ideas, I think in different ways that are true to kind of different competing strands of thought in the Federalist Society and elsewhere. And again, ones that you may not always hear as much about in other classes. So person number one, Felix Frankfurter.

William Baude (16:29):
So he wanted proof that the Federalist Society is not just a partisan organization. It's not about like contemporary political parties. Felix Frankfurter, my exhibit number one, he is a partisan Democrat who was a law professor at Harvard who loved Franklin Roosevelt and fought hard for basically anything Franklin Roosevelt wanted in the New Deal. I mean basically, when Roosevelt couldn't find any other law professor to stand up for what he was doing, Felix Frankfurter was there. He was ready to go to the mat. So Frankfurter wanted to-- he believed that the Supreme court was annoying and he wanted to try to get the Supreme court out of the way by appointing seven new justices to the Supreme court to have out-vote all of the justices who disagreed with him. And you know, even people who were on Frankfurter's side were like, "whoa, that seems a little extreme." People who were on Roosevelt's side, Frankfurter was there and said, "no, no, the court needs this" and then tried to come up with reasons that they should do this.

William Baude (17:21):
If we were not sure if it was constitutional, Frankfurter was there to say, "I'm for it." And well, in a reward for his loyalty, he gets put on the Supreme court. But on the Supreme court, he behaves in an important and principled way that is, I think, one of the most important ideas of the 20th century, which is he believes in judicial deference. There's an older law professor named Thayer, James Bradley Thayer, who wrote the first large article that the courts actually cared about in 1898. But the basic idea they both had was that while the court should engage in constitutional review, it should decide that things are unconstitutional, they should be really careful about it. And they should be really, really sure they were right before they went and struck something down. So in modern terms, actually they talked about this in terms of the standard of review-- like how sure do you have to be something as unconstitutional? And they said you should have to have be sure beyond a reasonable doubt, which is the standard from criminal prosecutions, right? You're always supposed to convict somebody of a crime if you're sure beyond a reasonable doubt they're guilty. The courts have the same view about Congress and the president. You should be sure beyond a reasonable doubt that they've done something unconstitutional before you step in.

William Baude (18:40):
It's like a 90, 95% that's level. Why? There's a couple of reasons, right? One, members of Congress and the president, unlike the court are actually elected to office and represent the people. So there's some reason to hope they're actually doing something democratically accountable. And even if they make some mistakes, at least they'll be kind of erring on the side of democracy rather than erring on the side of whatever it is the court might be doing. Plus if the court gets it wrong, if the court breaks things down as unconstitutional when they're not because they weren't sure enough, that takes away the ability of the people to get what they want now. And it takes it away in the future because the Constitution is really, really hard to change.

William Baude (19:26):
What's a good way to put this? All the power just might go to the judges' heads, right? If the court gets used to thinking that, "what we're really here to do is to decide and test the questions of constitutional law and then go with whichever side we favor more" that might shade back into that problem of the court making up whatever law it wants. Sort of deciding cases on whatever they think the law should be rather than just the law that it is. So the courts should be really thinking of themselves as taking the back seat, and thinking that they've got to be really sure of what they're doing before they come into to strike things down. So that led Frankfurter to be inclined to stay on the bench, to leave Congress alone when adopting various New Deal regulations, but also to the states, but also to lots of things that even Frankfurter probably were bad. When he'd see some suppression of free speech or some criminal procedure practices that probably troubled him as a liberal law professor, he thought, "I'm just not sure anybody's can you strongly enough that I can actually stop this."

William Baude (20:29):
So he saw that separation of policy and of law. And saw the way that judges could be really, really dangerous. Which, when you're a judge, is really hard to see, right? When you're a judge, it feels like how dangerous could judging be? Like, I'm the judge, we'll be fine. [Audience laughs]

Andrew Dougal (20:49):
Number two. John Marshall Harlan, he's an Eisenhower appointee in the second half of the 20th century. There are actually two different justices named John Marshall Harlan just to kind of mess with you when you try to read old Supreme court opinions. They've got Harlan number two and they've got Harlan number one. So Harlan number two was also a conservative in a different sense. So he also believed in what he would call judicial restraint. But for him, judicial restraint was not just about the government wins defer to constitutionality. It was more about deferring precedent. So he thought, you know, "there's been a lot of judges before me. There's been a lot of law developed and my job is not to make any sudden moves. Not to not to scare anybody. So you should decide the cases as they come along. But in general, you should be kind of making small, modest rulings that leave most of whatever's happened in place." In terms of other big political thought, I guess we'd call him the Burkian, right? The tradition is really important and that radical change is not doing anybody any favors. It's again, got a little bit of the judges can really dangerous aspect. Like you might come along with the judge and be sure this whole line of precedent is crazy and and wrong, but you know, how sure are you that you know better than everybody who came before you, because all of the American people are going to have to experience whatever it is you do. So it's about humility. It's about not making any sudden moves. Again, importantly different from the kind of deference of Frankfurter, because sometimes there'll be a line of doctrine that's that's against legislation.

William Baude (22:24):
So for Harlan, he came along at the time the court had started developing what we call substantive due process, these sort of under numerated individual rights to privacy and contraception and abortion and gay marriage and all that stuff. I think Harlan was probably not a big believer in that doctrine. In the first instance, they probably asked him, he would have said, "I'm kind of like Frankfurter. I'm not sure the courts should be creating a bunch of liberties that aren't in the text of the Constitution to enforce." But when the decisions came along, he said, "you know, but I don't think it's my job to get rid of this whole line of cases that have been going on since before, before I was born. My job is to figure out like, what are we actually doing in this line of cases and to avoid doing anything too radical."

William Baude (23:07):
So we shouldn't necessarily take the next next step and expand to a bunch of new liberties people wouldn't have thought of. We shouldn't be so quick to overrule things that came along even if they would go against the legislature, even if they might be a little bit wrong, right? So it's Burkian about precedent rather than being deference to elected branches. Another important strand. Third person, Antonin Scalia. So third, another law professor, another Supreme Court justice, actually law clerked at this law school. And probably the-- I don't even know how to say it-- one of the most important contributors to jurisprudence and constitutional thought in the 20th century. But added a third strand to Frankfurter and to Harlan and a third way to be a conservative or think about these principles of being a judge, right? Which was originalism. And so originalism, like deference to legislatures and like deference to precedent, is about making sure that judges aren't creating whatever they think the law should be, but it looks to something else. Instead of looking to precedent, instead of looking to Congress, it looks to the original meaning of the text of the Constitution. So Justice Scalia did not agree with Frankfurter that you had to be really, really sure before you struck something down. No, you should do your best to read the Constitution, to figure out what Madison and Hamilton and John Marshall thought they were doing when they helped to put it into law, then you should follow that because that's higher law.

William Baude (24:43):
It binds the legislature and, you know, who would let the legislature get out of control and separation of powers didn't enforce it. So the Constitution has this role as higher law. And similarly, you shouldn't worry too much about the fact that you're overruling precedent if the precedent is inconsistent with the Constitution. Because again, the Constitution is higher law. And just like Congress can't violate the Constitution, judges shouldn't be violating the Constitution either. And so judges have been creating some corrupt line of doctrine for a long time. Your job as a judge is to enforce the law, enforce the original meaning of the Constitution instead, even if that means overturning what Congress has done, even if that means overturning a lot of precedent. So when the Supreme court in 2008 had to hear a case about the original meaning of the second amendment, which guarantees the right to keep and bear arms, Justice Scalia wrote the opinion for the court saying "even though lots of places have enacted gun laws that don't comply with the second amendment, we're going to say a lot of them might be unconstitutional because the second amendment has been there since the beginning, it was intended to secure an individual right to keep and bear arms."

William Baude (25:55):
Justice Breyer even says in a dissent, there's a bunch of empirical evidence that these gun laws make people safer. And so, you know, the Supreme court's opinion might lead to more people dying. You know, there's blood on Justice Scalia's hands. And Justice Scalia said, you know, "maybe not, but, but maybe so." But it doesn't matter because the inclusion of a right in the Constitution by the framers takes off the table, the ability of legislatures and even the courts to decide that the right isn't really worth it or shouldn't be enforced, right? Our job is to take the commission of the rights that are there and to enforce them, even if it leads to bad consequences. And in the same ruling, he was also forced to overrule precedents of the Supreme court that had suggested the second amendment should be read narrowly or didn't really protect a right. And again, it didn't flinch from doing it. Because what mattered to Justice Scalia was the Constitution and the Constitution was higher than Congress and higher than what the courts had done before. Now, I will say he also had elements, actually in many ways, maybe more than he realized sometimes of Frankfurter and Harlan and his thoughts. So when, when it came to sort of doctrines that weren't in the text for the Constitution, he would sometimes remind people that part of the problem with creating new law was that it took away what the legislatures could do. It took away things that might be democratically accountable. And in cases where he wasn't really sure what the original meaning was, when he was still trying to work it out, he would sometimes say, "well, maybe we should stick to precedent in this area."

Andrew Dougal (27:27):
You know, he was still worried about being too radical sometimes. But the highest value was the text of the Constitution and its original meaning. Now, why am I going through all this? Partly just because I think it's really important that you all know about it. I figured I'd take advantage of you while you're here. But partly also to see, right, that the big ideas that people in the Federalist Society might talk about can play out in vastly different ways, right? There are vastly different ways of thinking about the right way to judge or the right way to think about the law or the Constitution that could lead you from being, you know, democratic hero, Felix Frankfurter all the way to democratic villain, Antonin Scalia, right? They each have some zones of possibility in them.

Andrew Dougal (28:11):
You know, I have my favorites too and many of you will develop your own favorites over the course of law school. That's actually part of what the Federalist Society events like this are supposed to help you do, is to start thinking through which of these arguments, which of these values seem the most persuasive and what kind of a lawyer you want to be. Alright. Any questions? You don't have to.

Audience Member 1 (28:45):
So it seems to me that some of these, I guess view points, are contradictory between each other in certain senses. And so in what way does the Federalist Society represent all of them?

Andrew Dougal (29:01):
Yeah. Well that's, that's part of it. I mean, this is part of the debate. This is part of the diversity of viewpoints, it's that, I guess two things. One, is sometimes different things might be contradictory, right? So you can't be both Felix Frankfurter and Harlan, they would disagree. They would probably kill each other, actually. But some people have different ways to reconcile. So, there is one theory that the text of the Constitution is sort of the highest, and then precedent comes in next and so on. And there is no answer. There is no canonical Federalist Society answer. There is no quiz in which you have to rank them in a certain way. Different members of the society, different people who have had events who aren't members of the society have had answers to those questions. But I find, hopefully many of you will find, will help figure out what your own answers are about a topic by talking to other people about why they think what they think and what you think is good.

Audience Member 2 (29:58):
Thank you for speaking to us. I was wondering why the time jump? So we have three founding and then we have three from the 20th century and there's like a big gap between those. And I was wondering if it's just because we'll be familiar with people at both ends? or?

William Baude (30:13):
Yeah. Well, so originally I was going to do six Supreme court justices because that opposes an artificial structure on this and makes it seem coherent. And then I wanted it to match it to Hamilton which felt sort of fell apart anyway. The other problem is like Supreme court was in a really dark place from about 1880 to, I don't know, 1920. I couldn't really find anybody there that I wanted to talk about. [Audience laughs]. So John Marshall had this whole, like text history structure, constitutional interpretation thing, now we had the civil war, you know, that's fine. Yeah. [Audience laughs].

William Baude (30:51):
The Supreme court really gets into some totally weird mode of we're more concerned about being a new country on the world stage like it's the first time for us to become a superpower and less concerned about all this like constitutional law stuff. So they start saying things like, "well, sure the Constitution has a bunch of powers in it, but there's no reason that those are the only powers. Like other countries do this stuff. We should do them too." And they let us say this, they go off into a dark place. And I figured it's too soon to get and all that.

Audience Member 3 (31:26):
So you talked about the kind of the conservative big six, at least in your mind. Do you think that there is a liberal analog?

William Baude (31:32):
Ooh, I hope so. So I'm not gonna try to do it off the top of my head. So I will say like Jefferson and Jackson used to be the big heroes of the democratic party and of liberals more generally. I mean, they even have dinners that are like the Jefferson Jackson dinners. I think liberal thought has turned against both Jefferson and Jackson because they did lots of bad stuff. But there is a certain amount of like-- Jefferson had various perceptions about individual liberty that might still be there. Andrew Jackson was the first populist. The Supreme court justices might include William Brennan, I'm sure he's on the heroes list. He creates more sort of creative, new rights through judicial interpretation than probably any other justice in the Supreme court. But I don't know. I'd actually love to see somebody else's list. That'd be a fun talk. Yeah.

Audience Member 4 (32:32):
You mentioned temporary little parties, and by my count you discussed anti Federalists, the Federalists, a Democrat and a couple of Republicans. Can you talk about what the nonpartisan organization needs and one that we're in defense of?

William Baude (32:49):
I'm voting for the sweet meatier of death in 2020. [Audience laughs]. I'm actually not, I seriously thought about it on Monday, but I don't believe in stupidity of death forgot this is being recorded. Yeah, so, I mean, I think, I mean for an organization, part of what it means is that like all, you know, partisan positions are things. Like individual members, many of them have, many people here feel very strongly about their partisan commitments, but there is no party line. And in many ways, having a party line is harmful, right? Having a party line means that you have less to learn from other people who might disagree, right? So you can have a better discussion when there is no party line and people try to figure out what's right. I have a party line that's also shortsighted, right? Imagine if in 1982, the Federalist Society had said "right now, Ronald Reagan seemed pretty great. We should see ourselves as part of the Republican party, right? That's a dangerous thing to yolk yourselves too, if the Republican party starts to go off in some very different, very troubling directions. [Audience laughs]. Purely hypothetically, you know.

William Baude (34:02):
That's part of the reason to have an organization that doesn't take a party line, right? This is the place to debate ideas, not the place to settle what the right idea is. Yeah.

Audience Member 5 (34:14):
So you're talking about sort of 20th century, right of center jurisprudence tension between deference to George Harlan as a common law traditionalism and originalism. It seems like originalism is far and away than the dominant view in constitutional theory right now on the right and within the Federalist Society. Do you see that changing? Do you see it morphing in a specific kind of way?

William Baude (34:44):
Yeah, so constitutional law professors are always asked to predict the future, right? Sometimes the short run future, like what is Justice Kennedy gonna think in six months? Sometimes it's the long run future of like what is the direction? We're not very good at it is the secret, but you know, nobody knows. I think no. So I, I'll throw my cards on the cards on the table, right. I throw in with the originalist camp, I think that's the right way to think about it. And I think that originalism, as a big idea is here to stay. I think it's actually gotten less partisan over time.

William Baude (35:20):
You've seen more and more people who wouldn't use the word right of center at all. Say they also recognize the value of the original meaning of the Constitution and maybe they think Justice Scalia got it wrong and like, didn't take seriously enough some liberties they care about or the things they care about. But I think if anything, you'll see the spread of originalism. But hard to be sure. I think at the same time you are going to see more conservatives looking around as if hypothetically the Supreme court becomes less full of people they agree with and more full of justices they really worry about. I think you'll see a revival of some people thinking maybe it wasn't such a good idea to tell the courts they were super powerful and we wanted them to decide all the cases. Actually right now a friend of mine is behind a movement to try to reduce the Supreme court from nine justices to seven. We're already at eight and he's like, rather than adding one more, let's just keep going down. [Audience laughs]. No new appointments for a while so we can sort of figure out what's going on. But I think we'll see the rise of that kind of thing, but that's worth what you pay for, which is, I guess, a piece of pizza.

Audience Member 5 (36:27):
Professor Baude, you mentioned briefly. At least within the student body, the faculty, you touched on it a little bit more of the importance of intellectual diversity on the faculty, specifically, and how you might compare this institution to others or the importance of it, at least from a teacher perspective.

William Baude (36:45):
So I feel like I have a conflict of interest here. I'm pretty sure I owe my job at this institution to intellectual diversity. And that when I came in to like interview and present things to the faculty, I think that the uniform view was that I was somewhere between crazy and merely wrong. But, willing to litigate over that because at least it was interesting. They hadn't thought of or heard of that heard before. So I'll say selfishly, like I think faculty's need a diversity of views because we are all still learning too.

William Baude (37:21):
We're still working out ideas and arguing about things and do things that have happen in even our core beliefs. And when you spent all your time talking to people who agree with you, you get totally blindsided by ideas and camps and arguments that you haven't seen before. But then it's probably even more important for the student body. So when I went to law school, there was nobody on the faculty who could give an introduction to the Federalist Society. There was nobody on the faculty who was willing to be seen in a room that had Federalist Society on the door, but the students would meet in like private reading groups out of sight of the faculty members and that was it. And it served us actually, it made it hard to go out and be a lawyer and suddenly learn that there were all of these people who had different ways of thinking about things who were lawyers and judges who we had to deal with, but nobody had ever taught you to take seriously what they thought and why.

William Baude (38:12):
Right. So nobody ever taught you to take seriously, why is judge so and so, you know, have this strange view of the fourth amendment? Only like my workshops and other things helped give me that and my classmates actually. Maybe that's another aspect of the question, right? Is that you have a lot to learn from each other and you'll have a lot more diversity of views amongst each other than you will on the faculty, I'll say. You should use that as a resource, right? You should see each other as a chance to, to experiment, to challenge and think about ideas that you won't get in any of your first requests.

Audience Member 6 (38:51):
Are there any voices in the United States about state independence that, for example, California, let's say that you would say are reasonably-- or, I mean, I come from a country where it's also federal budget, but it's a good point who shared-- or if it's different stuff, but then again, by giving more and more forward to, for example, the States, yeah. We'll be the, same in my country, kind of disrupt the system and then some parts will maybe want to be independent because I'm richer. My people are more educated and always here in the United States. Yeah.

William Baude (39:31):
So mostly, so I'll say mostly succession, right? States leaving the union is almost everybody off the table, right? I guess that doesn't have to be, we can have a cool discussion about it. And that's nothing that apparently has to be true, that's part of the history of America that I skipped, where the civil war settled and we all thought the session was a really, really bad, idea. And also it also is unconstitutional. And so that's a problem. But actually, there are other forms of state independence too. So James Madison, to stay on message, thought that secession was unconstitutional, that the Constitution bound us all together, right? And forced us all to be one country and work together. But still give States an important role in complaining when there were Constitutional violations.

William Baude (40:19):
So at Congress, one of the first Congresses passed the censorship act, the sedition act, that basically forbade criticism of the ruling party. The people who were criticizing were States who would pass resolutions saying this is unconstitutional. We don't think this could be enforced. We want to find ways to try to stop this. They didn't leave and it wasn't Virginia. Virginia didn't try to become independent and that probably wouldn't have been very practical either. But they did say like, just because we're part of the union doesn't mean we don't get to have our own constitutional voice too. And that's actually what we still see today. So when both Congress and the president agree to do something that's really controversial, it's often the States that ride to the rescue to challenge it. So Texas has been very busy not seceding but it's dead. So coming inward and filing litigation and the courts are filing, you know, finding various ways to politically contest what's happening. That happens to be sort of where things are today. I'm pretty sure that's where it's going to stay. I don't think we're going to arise to any sort of independence movement. Although there are some weird people in New Hampshire who talk about this thing. But even so, I guess I'll say that state independence has that secondary role. Way in the back, yes, you.

Audience Member 7 (41:35):
Well, in terms of the national law school environment, I know that Chicago has a very unique diversity, I think in terms of the student body and representation of conservatives. When you say that as a full Federalist Society across law schools will gain strength, do you think in the next decade, do you think people perhaps start to recoil from judicial activism, or do you think it'll stay pretty consistent in terms of the numbers constraint?

William Baude (42:04):
Great question. I have no idea is the short answer. I'll guess that it's that it's going to increase in strength, in part because I think one thing sort of related that we are going to be seeing more of is like more of various people sort of consolidating behind the importance of having one opinion and suppressing dissent, right? So free speech is more controversial than I ever imagined it would be. Especially even like free speech in the classroom and on campus is more controversial than I ever imagined would happen in my lifetime. And that I think will draw people towards organizations that still value free speech and debate. I hope, I guess I'll say I hope that causes people to realize the importance of not giving up the free speech zones that they have left. But it's gonna be on them. Yeah.

Audience Member 8 (43:00):
Thank you again, Professor Baude. I understand the title is the Federalist Society. Now, how does this idea sort of embody itself in the courts of the separate states, because you've mentioned that the Constitution is the supreme law, but obviously, each state has law and sometimes it's not settled on a certain issue. And, you know, I've only been here for three, maybe four days, right? And you're noticing that some States like to look to other States, right? And I, you know, at memory, when you mentioned that at least on the constitutional level there was this period where the justices were looking at the law of other countries and saying, "well, maybe this is how we sat with this issue," and I think I got the gist that that's not within the ideas of Federalist Society. But how does that embody itself on the state level when they kind of have to do that?

William Baude (44:06):
Okay, good, good. It's actually like, there's a great larger literature actually about this that I know you secretly read and are pretending not to have read. [Audience laughs]. Either way, either way, well-played. So, yeah. Fair enough. So I kind of quickly mocked the idea that the Supreme court would try to get Constitutional law. Well, they do it in Germany and it's working out well for them, so we should do here, right? But States do this all the time. You'll read cases where California says, "well, look at what other States are doing and we'll do it too." I'll say States are more likely to do that, not in areas of Constitutional law, but in areas where they're trying to figure out something like common law, like what are the principles of contract law and tort law that we all share that have worked out pretty well? So they actually kind of explicitly have the job of trying to harmonize those rules. Whereas when like the Illinois Supreme court interprets the Illinois Constitution, it's much more likely to focus on the Illinois Constitution and things like that. Although, and this is a little weirder. The state Constitutions are often copied from one another. So like there are weird divisions in the Illinois Constitution about pensions that were copied from the New York Constitution. And so to figure it out, they actually would go look at the debates in 1920, in New York to figure out what they thought they were doing. So nobody knows what we thought we were doing. [Audience laughs].

William Baude (45:31):
So the courts get complicated in an interesting way, but actually, here's the thing that gets interesting. The Federalist Society, as far as I can tell, is the organization in law school that actually takes state courts and state justices the most seriously. So if you look, I've seen, you know, ranges of talks over the years, and the people most likely to bring a state Supreme court justice to talk are by far the Federalist Society. The students who are most likely to go on to clerk for state Supreme court justices are often the students who got interested in that and may have been part of the Federalist Society, I think because of the recognition that the States each have their own interesting and different and important things to do. And if you listened only to your law professors, you'll probably think like federal courts are the only thing that matters and that state courts are some weird icky thing that you should never have to worry about because federal courts are where all the action is. And actually it's important to remember that that's not true and the state courts are often doing interesting and useful things. And as things we may not like happen to the federal courts, sometimes the state courts will be the one place left where some ideas are alarming

Audience Member 9 (46:44):
What do you think are the most interesting and useful aspects of the relationship between the Federalist Society and the American Constitution Society?

William Baude (46:52):
So the American Constitution Society has their own events somewhere. They're, you know, obviously also an important organization founded around a different set of principles. Most of the the best events I've been to at the law school have been cosponsored by the Federalist Society and ACS. And it often involved like two very different speakers, right? Who, each of them, independently had valuable things to say, but forcing them to actually talk to one another was even more valuable than listening to either one by themselves. Cause we often like actually find out like where the rubber meets the road, you know, and how do these arguments disagree? So I think that the disagreements and the debates between the two organizations is probably the most important thing about how to both of them. First, like the students should all be very friendly to each other, like no paintball games or whatever it is to work out their aggression against one another. But the intellectual debate I think was really helpful. One more. Alright. [Audience Applause].

Speaker 1 (48:09):
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