Federalist Society Panel Ponders What the Law Is

BY APRIL FARRIS

Over 200 students attended the Harvard Federalist Society’s September 11th panel discussion entitled “Can We Really Say what the Law Is?” The panel was composed of Professor Jack Goldsmith, author of the new book “The Terror Presidency” and former Assistant Attorney General for the Office of Legal Counsel; Professor Charles Fried, President Ronald Reagan’s former Solicitor General and former associate justice for the Massachusetts Supreme Court; and Professor Noah Feldman, a constitutional advisor to the Coalition Provisional Authority in Iraq.

Throughout the discussion, the professors exchanged views on conservative legal theory and the appropriate role of judges in deciding “what the law is” or “what the law should be.” Fried began the discussion by explaining that law is a key component in a government that exists to provide liberty to its citizens.

“Law is something that constrains,” Fried said. “It constrains us and it constrains judges. Therefore, judges must not and usually do not do just whatever they want since they are constrained by law. When lawyers argue to courts, they argue to persuade the judge that the law requires their client to prevail.”

While interpreting “what the law is” will lead a judge to determine that one party’s interpretation was correct while the other party’s was not, Fried said the role of lawyers on both sides remains important.

“The judge or the scholar can look at the argument and say ‘what a wonderful argument that was, hats off to the person who did it. But of course its not persuasive, it’s not correct.'” Fried said. “That’s why law such a great profession. The reason you want the adversarial clash is that it shows the faults of each argument and shows where the balance of reason lies.”

Goldsmith echoed the point that a founding commitment to the conservative approach to law lies in respect for distinction between what the law is and what a person might think the law should be. Goldsmith said he was attracted to this principle following his experience in a constitutional law course at Yale Law School.

“I immediately had a negative reaction in Con Law because from the first day, everyone was giving their opinion on what the world should look like and law didn’t seem to have much to do with it,” Goldsmith said. “I had a negative reaction to that because law can’t be what people think it should be. It must have some more objective basis.”

While many conservatives advocate an “originalist” judicial philosophy, Goldsmith said that he rejected originalism as a constitutional theory on two grounds: one, no Supreme Court justices have been true originalists, and two, originalism can not solve some modern problems that were not envisioned at the time of drafting.

While originalism can be valuable to a conservative judicial philosophy, Professor Feldman said a main component of legal conservatism is a belief in judicial restraint. According to Feldman, the theory of judicial restraint was developed by Felix Frankfurter, a Harvard professor considered to be the leading liberal in public life before joining the Supreme Court. However, his advocacy of judicial restraint left him in a precarious position politically.

“Frankfurter developed the theory of judicial restraint and really believed it,” Feldman said. “He was against activism, but Federalists won’t have him since he invented the modern regulatory state under [Franklin Delano Roosevelt]. The liberals won’t have him since he wouldn’t go along with the Warren Court.”

Ultimately, Feldman said, people often make a difficult decision about which group of people to trust when selecting a judicial philosophy.

“All legal theories require you to trust somebody and not trust someone else,” Feldman said. “Judicial restraint trusts the people. Positivists trust the judges. What tells me who I trust is who I consider to be more like me.”

Despite differences in judicial philosophy, Goldsmith said that a core of the conservative approach to law could be seen in the rulings of Justice Alito and Chief Justice Roberts.

“It’s an approach that starts with text and understanding, but cares a lot about tradition and precedent,” said Goldsmith.

“Judges are modest about their roles and cautious about intervening in political affairs. Cases are decided minimally, but there is a high dose of wisdom and prudence in them.”

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