Throughout my 1L orientation, my mind kept returning to this overlooked moment in the 2016 Presidential campaign– a moment that teaches us much more about American politics than the entire telethon of Trump-focused punditry ever has nor ever will. In a backroom after a Hillary Clinton campaign event, Julius Jones, a Black Lives Matter activist, is face-to-face with the frontrunner herself, challenging her to explain how she would change “hearts and minds” to address racism in America. Clinton, in a rare candid moment, responds passionately: “I don’t believe you change hearts; I believe you change laws, you change allocation of resources, you change the way systems operate.”
What a great political tension! To address the great public problems of our time, should we be changing Hearts or changing Laws?
Of course, Jones and Clinton are both right. Heart and Laws — and consequently, Heart-changers and Law-changers — are not opponents, but rather interlocutors in democracy’s great conversation.
Changing Hearts changes Laws. How would Anthony Kennedy’s holding in Obergefell have been different if public support for gay marriage had not doubled in the past 20 years? Would the Civil Rights Act have passed if Martin Luther King had proposed a wonky plan instead of a prophetic dream?
Changing Laws changes Hearts. Would King’s dream have resonated as much in white America if Truman had not integrated the armed forces a decade earlier? Would we even have a “pioneer spirit” of the American West if the Homestead Acts — which, in the late 1800’s, gave 270 million acres of federal land to Western settlers at little to no cost — never passed?
Indeed, as Harvard Law’s own Roberto Mangabeira Unger points out frequently, “our ideals and interests [read: Hearts] are nailed to the cross of the institutions and practices that represent them in fact [read: Laws].”
My mind kept returning to this backroom moment — and the great democratic conversation that lies behind it — during my 1L orientation because the week possessed an eerie silence on the subject of changing Hearts and Laws. During welcome speeches and opening remarks by professors, we received multiple reminders that the law was interesting, that law school could be fun, that we should be sure listen to each other, or even, grotesquely, that we had “won” the legal education “game.” But there was little talk about how the legal profession that we are entering plays a special role in the changing of Hearts and Laws and that we, about to be bestowed significant legal power, have a responsibility to steward that role for justice.
It’s not like there are not Hearts and Laws in need of changing. Tens of millions of Americans are being ignored: by an economy that leaves almost a quarter of our children in poverty, by a criminal justice system that cages over two million human beings, by a social fabric that has frayed to the point where one in four of our neighbors say that they have “no one with whom they can talk about their personal troubles or triumphs.” Our Congress, designed to be the branch closest to the will of the People, is being corrupted by monied interests and we have yet to rekindle a shared civic spirit strong enough to fight back. Meanwhile, our earth is steadily warming and systems of sustainability are being implemented too slowly to stem the crisis. There is a long emergency in America, but we were oriented to life at one of America’s most powerful institutions with little substantial mention of it.
But we need not despair nor lapse into a smug cynicism. Rather, we should, before it’s too late, build a moral community here at Harvard Law School that centers our focus on (that, perhaps, re-orients us towards) changing Hearts and Laws to address this long emergency.
First, we must bring the language of changing Hearts, writ large — moral prophecy — into our conversation. It is the language of the Martin Luther Kings, Thomas Jeffersons and Pope Francises of the world: setting a direction for where we should go, articulating visions of parts of the Good life, deliberating what a more perfect union means, and bearing moral witness to the dark corners of today’s system.
Second, we must bring the language of changing Laws, writ large — structural vision — into our conversation. It is the language of the Jane Addamses, Theodore and Franklin Roosevelts, and Lawrence Lessigs of the world: identifying first steps in the direction of our ideals, analyzing the institutions that mold public life, launching creative interventions, and supporting existing constructive deviations from the dominant system.
Some of us will end up more in Jones’ camp, taking up the work of changing Hearts. As members of the legal vocation, most of us, like Clinton, will be better suited to the work of changing Laws. Either way, what we cannot do is ignore the need to change Hearts and Laws while lost among the shiny distractions and misplaced anxieties of the pre-professional rat race. Not at this time. Not with this power.