Stanford Law Professor Michael McConnell on his Career and Originalism

On November 4th, 2017, Professor Michael McConnell spoke at the Buckley Program’s conference on The Constitution and the Courts.

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. From 2002 to the summer of 2009, he served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit.  He has published widely in the fields of constitutional law and theory, especially church and state, equal protection, and the founding. In the past decade, his work has been cited in opinions of the Supreme Court second most often of any legal scholar. He is co-editor of three books: Religion and the Law, Christian Perspectives on Legal Thought, and The Constitution of the United States. McConnell has argued fifteen cases in the Supreme Court.

The Buckley Program had the chance to interview Professor McConnell at the Omni Hotel in New Haven, CT. The transcript has been condensed and lightly edited from a longer interview.

Ethan: What stands out as some of the more meaningful or memorable experiences from your career in law?

Michael: Oh, I have to say some of the Supreme Court arguments have been the highlight of my career. They are an intellectual challenge, and it’s a sharp court. You really have to be on your toes—it’s the World Series of law. In particular, you know, I’ve had some very interesting and difficult cases. My very favorite case of all time was Rosenberger v. University of Virginia (1995), my rebuttal argument in that case was the highlight of my career. Justice Souter asks me, “What if [a student publication] is engaging in proselytizing?” to which I said, “Justice Souter, proselytizing is just an ugly word for persuasion, and persuasion is what the First Amendment is there to protect.” Then the buzzer goes and that’s the end of the argument! [Laughter]

Ethan: One question posed to you in the last talk was: how should originalists interpret federalism?

Michael: Originalism is first and foremost a scholarly enterprise. It’s about understanding the Constitution as it was originally understood. Whether we do anything with that or not, it’s not necessarily a commitment to doing something—it’s way to understand. And that’s the first step… You go after the truth and that’s worthwhile even if it doesn’t affect the world. Secondly, as an advocate and somebody who does work in the world, I think of it like this: my aspirations for are for Constitutional law to become closer to the Constitution. So, I look for steps that can be made that will bring the two together. I don’t look for Nirvana in which it would all be aligned. It’s the same method for amendments.

Ethan: Speaking of the Constitution, what key Constitutional tensions or emerging areas of study will become more important in the next 20-30 years?

Michael: Who was it who said, “You know the future is actually the very hardest thing in the world to predict.” [Laughter] I think the relation of international law and the treaty power is going to emerge as a real battleground in the next 20 years. I do think that the administrative state issues that we heard in the last panel are going to be reignited, and Peter Shook’s last question is really important, which is how do you get moderates and liberals concerned about the administrative state? Or, what is it about the administrative state that moderates and liberals and progressives are concerned about and what is their agenda for the administrative state? They’re all discontent, but discontent in different ways. We live in very interesting and unusual times in which the politics of both sides of the spectrum are increasingly dominated by a struggle between those who feel disaffected and alienated and those who understand themselves to be in the mainstream and represented. The Tea Party movement and the Occupy movement—they were strikingly similar in their attacks on what’s going on. They don’t stand for the same things, but very similar.

Ethan Young is a senior in Berkeley College.

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