Marquette University Law School Student Bar Association writes to you today to address the tragedy that we as a community and a country have faced in the last three weeks. Not one of a pandemic, but rather the state-sanctioned murders of Black Americans. Namely, Ahmaud Arbery, Nina Pop, Breonna Taylor, George Floyd, and countless others. Their deaths are not novel, and we would be remiss to categorize them as such. Their deaths are the tragic manifestation of a long-standing system of racial oppression that continues to unjustly claim the lives of Black Americans.
We want to be loud and exceptionally clear: SBA believes Black Lives Matter. We are an anti-racist organization, and we condemn every form of racism. We stand in solidarity with the members of the Black Law Student Association, the Black community of Marquette University, and the Black community around the world.
On April 10 I participated in a panel discussion sponsored by the Law School Chapter of the Federalist Society. The presentation was entitled “Lawyers, Plaintiffs, and Professors, Oh My!: Janus v. AFSCME.” The other panelists were Adjunct Professor and Director of the Law Library Elana Olson, Alumnus Daniel Suhr from the Liberty Justice Center , and Mark Janus, the name plaintiff in the case of Janus v. AFSCME. What follows are my prepared remarks.
In June of 2018 the United States Supreme Court held, in the case of Janus v. AFSCME, that it is a violation of the First Amendment for State and public sector unions to assess mandatory agency fees to non-consenting employees. The majority of the Court held that forcing non-union workers to contribute money to support non-political activities which benefit all workers violates the Free Speech rights of non-consenting employees.
In so holding, the Court overruled a precedent of over 40 years, Abood v. Detroit Board of Education, a 1977 case that had upheld the practice against a First Amendment challenge.
Opposition to labor unions and collective bargaining rights is a policy choice held by many political conservatives today, but it was not always the position of the Republican Party. One of the early icons of the conservative political movement in the United States, Whittaker Chambers, was himself a union member at times in his career, he was supportive of the labor movement, and his wife and many of his relatives were union members.
This icon of political conservatism in the 1950s and 1960s supported collective bargaining rights so much, that when the parent of the conservative National Review Magazine gave an award named after Whittaker Chambers to our guest Mark Janus, in recognition of his participation in the Janus v. AFSCME litigation, the family of Whittaker Chambers objected to their father’s name being associated with the case.
On October 18, 2018, I participated in a presentation entitled “Free Speech and Originalist Jurisprudence” at the University of Wisconsin-Stout along with Professor Alan Bigel (UW-Lacrosse). The event was part of Free Speech Week sponsored by the Center for Study of Institutions and Innovation. What follows is a copy of my prepared remarks.
“In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army. He did not use his toast to offer a tribute to individual liberty. Nor did he sing the praises of limited government. Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”
I wrote that in a 2012 blog post, and I received an immediate and angry response from a lawyer who denied that George Washington ever said such a thing, and who rejected the idea that George Washington ever supported a powerful national government. This well documented historical fact did not fit within the reader’s understanding of the original intent of our U.S. Constitution — and therefore the reader simply could not believe that the quotation could be accurate.
The response of this reader reflects the fact that, for many persons, originalism is primarily a culturally expressive theory – a theory that expresses a culture that reflects conservative political views, moral traditionalism, and a tendency towards libertarianism. (Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, “Profiling Originalism,” 111 COLUMBIA L. REV. 356, 400-402 (2011)).
However, originalism as a theory was not invented in order to provide a vehicle for cultural expression. Instead, the goal of originalism is to provide an interpretive method for objectively defining the meaning of the U.S. Constitution.
There is an abundant historical record supporting the conclusion that the United States Constitution was promoted by a core group of political leaders in order to strengthen the national government, and that the Constitution was understood by the people during the ratification debate to do just that.
In rejecting this historical record, the lawyer who responded to my blog post revealed that he was more devoted to his favored myth of original meaning than he was to objectively weighing the available evidence of actual meaning.