Voice of the majority


You might have heard this old chestnut before:

Child: “Grandma, why is there a mother’s day and a father’s day, but no children’s day?”Grandmother: “Why, every day is children’s day!”

This is how I sometimes feel about the American Constitutional Society here at the law school.

ACS, if you’re not familiar, is an organization of students, professors, and practitioners who, according to the group’s web site, seek to “help revitalize and transform the legal debate, from law school classrooms to federal courtrooms” and “counter the dominant vision of American law today, a narrow conservative vision that lacks appropriate regard for the ways in which the law affects people’s lives.” In other words, it is the liberal counterpart to the Federalist Society, a description with which most ACS members would likely agree. And like the Federalist Society, ACS has a Harvard chapter. But I have to admit, I have always been confounded by the existence of ACS at Harvard. For in reality, as the grandmother above would say, every day is ACS day at Harvard Law School.

I should note, for the sake of full disclosure, that I am a member of the Federalist Society. I haven’t been the most active member, and I don’t occupy any board positions, but my leanings still tend in that direction. But my comments here are not intended to take issue with ACS’s particular philosophy; reasonable people can disagree on legal issues and methodologies. Rather, they have in mind to point out the oddity of the presence of a discrete liberal legal awareness organization at a place like Harvard Law School.

It’s not a bold proposition to state that the law school is a significantly liberal environment; it’s practically a matter of fact. Law students in general, with their incoming save-the-world notions, largely lean to the left to begin with. Harvard Law students, being more zealous and ambitious in their idealistic pursuits than most, pull the overall tenor even further in that direction. And the faculty, who are our first and foremost sources on the state of the law, methods for thinking about the law, and policy arguments about where the law should be going, are, let’s face it, just to the left of the old Soviet Pravda.

Again, there’s nothing wrong with this in itself. People are bound to hold different opinions; moreover, it’s not like the school’s ideological reputation was a well-guarded secret that only became known after each of us chose to enroll. But what’s perplexing is that in an environment that predominantly promotes liberal viewpoints, there is still the need for a group that advances these same perspectives, as if the law school wasn’t already replete with them. Somehow, after a full day of classes that principally espouse a liberal legal philosophy, from civil procedure to criminal law to tort law, there is then a group that reiterates these very same principles in the name of “counter[ing] the dominant vision of American law today.”

Student organizations on campus generally exist, first, to permit assembly of those who might not otherwise find each other and, second, to promote common interests particular to that subset of individuals in a manner stronger than separate persons’ voices would provide. But it doesn’t really work when the putative members are everywhere to begin with and comprise a clear majority. The Veterans Association, for example, serves the needs of law students with military experience; there is no corresponding Civilians Association. The Roscoe Pound Society promotes the interests of non-traditional law students; there is no Traditional Students Society. We have BLSA, SALSA, APALSA, and so forth; there is no WLSA, and there shouldn’t be. The actual student organizations just listed aim to advance viewpoints that might not be heard as clearly or effectively without their existence. And yet, in ACS, we have the norm turned completely on its head: a student organization that advances the principles of the dominant majority. An ACS chapter at Notre Dame, I could understand. Washington & Lee, sure. But Harvard?

One argument proffered for the existence of the national ACS is that it is designed to stem the supposed rising tide of conservatism in legal philosophy and the judiciary, or at least reinvigorate the waning influence of traditional liberal principles. More to the point, its founding in 2001 was clearly designed to counter the rise of the Federalist Society – or, as an ACS brochure obliquely notes, “twenty years of sustained organizing by legal conservatives” (the Federalist Society having been founded in 1982). But in general, and even more pointedly so at Harvard, this type of justification ironically calls to mind the overreaction of those crackpot conservatives of the last ten years who, fearing that they were “losing” the country they once knew, circled the wagons and headed for the hills of Idaho. We tend to think those people are crazy, because the fact is that the playing field is still so overwhelmingly tilted in their favor, despite whatever “gains” others have made, that their views simply don’t hold water. And so it is arguably for ACS on a national scale, and indisputably for ACS at Harvard. Moderate and conservative students at the law school may not be, as one professor stated in the mid-1980s, a “tiny and beleaguered minority,” but they remain a minority nonetheless, with liberal students, liberal faculty members, and liberal legal methodologies comprising the vast majority. Concerns that ACS exists on campus to respond to a dominant, or even sizeable, conservative ethos on the Harvard campus are just not plausible.

None of this is to knock the folks in ACS, many of whom are good friends of mine. Besides, I’m sure they appreciate the free publicity this column is affording their organization. And as stated, the point here is not to enter into a debate over the actual substantive merits of one legal viewpoint versus another; I’m sure that, given the array of issues in the jurisprudential firmament, I as a moderate conservative would actually come down on their side on a number of them. It’s just that the whole idea of ACS here at Harvard seems a little, well, silly. The next thing you know, we’ll all be celebrating children’s day.

George Hicks is a 3L.