It�s a strain to try to think of something to debate, given the eloquence, cogency, and all-around common sense in Richard�s last posting, especially the gracious implication that USC has made hiring mistakes. One more biographical point; I believe that I am actually a card-carrying dues-paying member of the Federalist Society (though who can actually keep track of these things), so that, like Richard, I take umbrage at the notion that it should count against anyone. Indeed, as those of us who�ve participated in any of its conferences know, it is about the most fair-minded debating society around, and always does its best to present center and left views to go along with its traditionalist and libertarian leanings.
It�s a measure of how perverted our law and politics have become that, in some quarters of the polity, to say �Federalist Society Membership� is a coded message meaning �Right-Wing Neanderthal or Troglodyte,� which is probably unfair not only to Federalist Society members, but also Neanderthals and Troglodytes.
Perhaps the main sinner in this regard is Senator Edward Kennedy (although Ralph Neas of People for the American Way and others of his ilk come close), who infamously slandered Robert Bork in his �Robert Bork�s America� speech, claiming that �Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.� None of that was even remotely true, of course, and Robert Bork reports that Kennedy later coyly explained to him that his words were �just politics.� And that�s the problem--the media and the American people have too long permitted politicians the freedom to fail to distinguish between law and politics. Too many in the academy think there is no such distinction, but if there�s not, then our profession is built on a massive lie, and Richard Epstein and the rest of us have been writing in vain.
And to come back to Richard�s point about titles of nobility. We have no established church, no monarchy, and no aristocracy. All we have, for sacred veneration, is the Constitution and laws; all we have is our ideal that we have a government of laws, not men. Maybe it�s no surprise that politics should permeate law, since it�s so important to us and since politicians� power now is so dependent on the law. I once wrote that a paleoconservative is not quite certain that the American revolution wasn�t a mistake, and that we might be better off if we had institutions such as a House of Lords which could offer some competing traditional or aristocratic guidance to that now vested exclusively in the United States Supreme Court. I�d be inclined, in short, to revisit the question of prohibiting titles of nobility, so I�m not sure I can elucidate the nuances of the currently-existing Constitutional provision on the point. Perhaps, Richard, this will give us something to disagree about.