I was both pleased and amused to read Steve�s initial contribution to our dialogue over the ins and outs of the Roberts nomination. I confess that I do not have a distinct memory of the interview that he had at the University of Southern California. But if he said that I talked too much, then I find it hard to deny that it all happened. I do know that we interviewed many strong candidates at USC those days, and often made terrible mistakes when we did not extend offers. I used to say that would could staff the finest law school in the United States with people who did not receive our offers. And though I am gone from USC for over 30 years, it still occupies a special place in my heart, as the home that gave a much needed boost to my fledgling academic career.
Our blog, however, is to talk about weightier things, and Steve has mentioned two. One the Roberts nomination, and second the choice of philosophies needed to understand the Constitution. On the first, it seems that the issue of the moment is whether Judge Roberts is, or has ever been, a member of the Federalist Society. I do not know whether I count as a dues-paying member of an organization to which I have devoted much energy over the past 25 years, but it hardly matters. It is just inconceivable to me that the confirmation process would turn on an issue of so little relevance to the task at hand. One could understand a sense of outrage at people at nominees that spew hate and disdain from their lips. But if Federalist Society membership counts as reason to examine Judge Roberts closely, then membership in the American Constitution Society should be a red flag when the next Democratic nominee comes before the Senate. In effect, political loyalty becomes the litmus test for confirmation, and the entire process degenerates into a situation where the strongest advocates on each side demand the right to block nominees from the other side. This has to be a form of institutional madness, which will only receive too much weight if this line of inquiry has any traction in the Senate. We have to have the faith that all nominees will listen to arguments for both sides before deciding a case. The effort to pin people down to their past statements denies the possibility of intellectual growth. It speaks to the pettiness of the questioners, and not to the merits of the candidate.
Let us therefore move on from the latest tempest in the teapot to the larger question of whether my constitutional theory is paleoconservative or libertarian. The first point here is that the opposition is overstated because of the heavy congruence of the two positions as a matter of historical happenstance. The Constitution has survived as long and as well as it did because the Founders had a clear philosophy that dominated most (but not all) of its key provisions. They were not hard, anarcho-libertarians, but believed that the state had to have sufficient powers to govern, which in turn meant that it had to have sufficient powers to tax. But these powers were exercised to the end of protecting liberty and property, which received accordingly explicit constitutional protections. An honest reading of these key provisions will clip the wings of government to, as the phrase goes, �adjust the benefits and burdens of economic life,� because of the clear understanding that this is just a fancy modern way (Justice Thurgood Marshall�s way) of saying that it is all right for the state to take from A and give to B so long as it runs its program of confiscation through some large facility, like a pension guaranty fund, to achieve its result. There will of course be cases that Steve and I differ on, but they are not likely to come up in the current environment, where the dominant error is in favor of too much legislation, not too little. But if there is some dispute over how broadly to read a prohibition against titles of nobility, I�m confident that Steve can lead me to the right answer.