Scholars Explore ‘Law in American History, Vol. III’

Welcome, everyone. I am delighted to
see you all here and to welcome you to
this wonderful event. I am standing here
in two capacities. The first one is as a
Dean, who is celebrating the achievements of one of
my faculty members, G. Edward White, or Ted, as
we fondly call him. Scholarship, as many of
you in the room know, can be a lonely undertaking. It is mostly done sitting
at one’s desk by oneself. And even in a place as committed
to our vibrant intellectual community of faculty and
students as we are here at UVA, it still can be a
lonely undertaking. And so we look for opportunities
to celebrate what we do, and this is one of
those opportunities. Today we have invited
eminent legal historians and legal scholars, both
from within our community and across the country, to
engage with one of our own. So the second capacity in
which I stand before you today is as a legal historian
and a longtime beneficiary of the learning and wisdom of
everyone sitting on this panel. Ted White has been a
bedrock of the University of Virginia’s legal
history program since his arrival in 1972. Many of you are familiar with
Ted’s astounding productivity and the awards,
accolades, and prominence that have attended it. This book is his 18th, in
addition to edited collections and many, many, many law review
articles and shorter works. These books range in subject
matter from Alger Hiss to Oliver Wendell Holmes, from
the American judicial tradition to the American West,
from tort law to baseball, and so I hear more
recently, to soccer. Ted is a fellow of the American
Academy of Arts and Sciences, a fellow of the Society
of American Historians, and a member of the
American Law Institute. He is a recipient of
too many awards to name, but I will just name a few. The Order of the
Coif book Award, the James Willard Hurst
award, the Choice Award for outstanding academic book. He has also received a
Guggenheim Fellowship and our own Roger and Madeleine
Traynor award for scholarship. The book we celebrate
today is the final volume in his ambitious and sweeping
Law in American History series. This volume is
from 1930 to 2000, and I brought the three
volumes so that you could see. [LAUGHTER] OK, so two things to
notice about this. When we say Ted has
written 18 books, they’re not little books. They are, many of
them, very big books. And then second, it looks to me
like Ted has increased in size as he’s gone through
the volumes, the most recent one at the bottom
being the largest. So in this book,
as you will hear, Ted chronicles the
evolution of American law from the beginning
of the Depression through Bush versus Gore. He connects law to the major
political, economic, cultural, social, intellectual, and
demographic developments of these decades,
and he identifies what modernity has meant for
the history of the United States and its laws. And we will hear more about
this masterful book momentarily. What might be less visible to
you but has been clear to me since even before I arrived
here close to 20 years ago, is that even as Ted
has been so prolific, he has also been an
incredibly generous colleague, as a legal historian
and scholar. He comments on manuscripts. He strategizes about the
shape of book projects. He teaches many students. I was just talking
to one who was his student in his small
section many, many years ago, and he makes a real
impact on everyone he interacts with
in this institution. So I make this introduction not
only with celebration, but also with gratitude. And in many ways, Ted’s
work and this panel is part of a celebration
of the larger legal history community that has flourished
for many decades at UVA Law School, not only with Ted,
but also Mike Klarman, Barry Cushman, Chuck McCurdy. It continues to flourish with
faculty, among many others, like Cynthia Nicoletti, Jessica
Lowe, [? Flora ?] Peterson, and today’s moderator,
Charles Barzun. Charles is, segue
into introductions, Charles is the faculty
advisor for our JD MA Program in Legal History, along
with Cynthia Nicoletti. He is a 2005 graduate
of that program, and his areas of interest
include constitutional law, torts, evidence, and the
history of legal thought. He joined the UVA
law faculty in 2008. And before that, he
was a Climenko Fellow and lecturer at Harvard
Law School and a clerk to Judge Sack on
the Second Circuit. He is the author of a slew
of scholarly articles, most recently
“Constructing Originalism, or Why Professors
[? Boit ?] and Sack Should Learn to Stop Worrying
and love Ronald Dworkin.” We also welcome back
to the law school, to UVA Law, Jack Goldsmith. He is the Henry L.
Shattuck professor of law at Harvard University and
a senior fellow at the Hoover Institution. Professor Goldsmith
is the author of many books and articles on
topics related to terrorism, national security, international
law, conflicts of law, and the law of the internet. His most recent book is a
memoir In Hoffa’s Shadow, a Stepfather, a
Disappearance in Detroit, and My Search for the Truth. Kirkus Reviews calls it,
a darkly engaging account of an important,
misunderstood epic. And I’m happy to
welcome Jack back. He was on the faculty
here many moons ago. I’m just going to note
these are excellent titles that our panelists
have offered us. It is wonderful to
see how relationships that are fostered
here can live on over decades and
across the country. And we know that as well
because we welcome back Laura Kalman, who has been here
before commenting on books. I have been the beneficiary
of her commentary before. She is a distinguished professor
in the history department at the University of
California Santa Barbara. She is a quite distinguished
scholar whose area of expertise is 20th century US
political, intellectual, and legal history. Her colleagues describe her as,
an exceptional constitutional scholar. And her students call her,
an inspiring professor and a passionate teacher. She is the past president and an
honorary fellow of the American Society of Legal History. She is the author of a
number of award winning books on 20th century legal
and political history, as well as on the legal academy. She has won so many
prizes, including the Littleton-Griswold prize
in American Law and Society for her biography of Supreme
Court Justice Abe Fortas, and her latest book, The Long
Reach of the ’60s, LBJ, Nixon, and the Making of the
Contemporary Supreme Court, recently won the David
J. Langum, Sr., Prize in American Legal History. Victoria Nourse– I’m
going alphabetically, but they’re not sitting
alphabetically, so I apologize. So Professor Nourse
is at the end– is the Ralph V. Whitworth
Professor in Law at Georgetown. She directs Georgetown Law
Center on Congressional Studies, and her
scholarship focuses on statutory
interpretation, Congress, and separation of powers. She worked in the government
as a lawyer for the Justice Department, the Senate Judiciary
Committee, and as chief counsel to Vice President Biden. And during her service to the
Senate Judiciary Committee, she helped draft the
Violence Against Women act. She is described by the dean
of Georgetown Law School as a superb scholar
and someone who has made great contributions
as a public servant. Her latest book is Misreading
Law, Misreading Democracy. So thank you in advance to all
of our distinguished panelists for joining us today to discuss
law in American history. I know I am going to
enjoy every minute, and I trust you
all will as well. Thank you. [APPLAUSE] CHARLES BARZUN: Thank you. Ooh, OK, does this work? Thank you so much, Risa. My job will mostly be
to keep time in this. Basically, what’s
going to happen is we’ll hear from
each of the panelists. And then Ted will have 15
minutes or so to respond. And then we will open it up
to questions to all of you. And so we’ll keep track of that. OK, Victoria, thanks. VICTORIA NOURSE: Well, I’m
really honored to be here, and I’m delighted to
be out of the swamp. I was driving down 29 and
really loving the fact that I was outside of
the range of Twitter and the latest
protest at Georgetown involving the Department
of Homeland Security and all sorts of other things. And I’m honored to
be on this panel of extraordinary scholars. I have been inspired over
the years by Ted White to write, or attempt to
do, constitutional law scholarship on Lochner Era. And I have been inspired by
his work for many, many years. So how with the
separation of time will we look back on the
history of the 20th century? How will we look at
its constitutional law? What will we see? I don’t think you
can answer that without the essential reading
of Ted White’s latest book. So I want to take a look
at this extraordinary book and use it as a
launching pad of sorts. It is unparalleled, in my view,
with its attention to detail, in terms of the doctrines of the
Supreme Court and other courts, as well as evoking the
scholars of another day. So as we say, history
is a foreign country. But this book allows the
reader to really enter the minds of those
who have long passed, who have been the
authors of American law. Now great history
provokes thought. And so I’m going to entertain
you with a couple of ideas here that may or may not be ideas
that the panel agrees with, but I think may help us
understand what this book does in terms of its contribution
to the 21st century and how we look back
on the 20th century. So the first theme I’m going to
talk about is brittle rights. The second one,
structural drift. So what do I mean by that? Well, one of the major
themes of this book is the shift from guardian
review to bifurcated review. In guardian review,
the Supreme Court imagines itself as
protecting individuals from ravaging majorities. In bifurcating
review, which occurs at the end of the 20th
century, the court shifts. On one side of the bifurcation
sit economic statutes, where the court defers. On the other side
lie statutes that involve non-economic
matters and rights claims. Here, the court engages in
much more searching review with respect to the
First Amendment, the Fourth Amendment, et cetera. White has challenged
prevailing views in this book in terms of
guardian review on Lochner. And these are views
that I share with him. Lochner is the case that
Teddy Roosevelt made famous, actually, at the
beginning of the century. It has become a symbol for
lawyers of an aggressive review by the Supreme Court. It has also become a symbol for
debates between libertarians and others about the role
that the court should play. White’s account of
the Lochner Court may well be controversial
in some quarters. But I think he’s
absolutely right to say that the court was
engaged in what he calls a boundary pricking
exercise, which is to say that the court was
engaged in due process cases not with the tradition of
substantive due process, which is a modern term, but rather
with ancient ideas that have long since disappeared. If you Google or Westlaw the
terms “police power” and “class legislation,” you
will find those are the terms in which
constitutional law was argued for about 50
years, 1880 to 1930. White knows this very well. These are language
that doesn’t– they’re not taught in your first
year constitutional law course. But as I said, the past
is a foreign country, and one thing one gains from
reading a book like this is a reminder that this is the
language in which scholars, lawyers, judges debated the
scope of economic legislation and the scope of other rights,
including the First Amendment. Now one of the things that
I take from this history is the fact that we
should remember– for all of you
textualists out there, I’m a scholar of interpretation,
whether statutory or constitutional– clause parsing was not
part of constitutional law for a very, very long time. Original public meaning was
not part of this era either. Instead, the Court used these
terms, as I’ve mentioned, police power and
class legislation, to address major
constitutional ideas. Now contrast that
guardian review idea with the core of the book, which
is about the late 20th century and the emergence of
bifurcated review, where the court defers
to economic legislation and at the same time engages
in aggressive review on matters involving enumerated rights. And I wanted to suggest to you
that one of the things that we will look back on the 20th
century and begin to question is the embrace in bifurcated
review of a brittle rights notion. So what do I mean
by brittle rights? Well, one idea of rights is the
Dworkinian notion of Trump’s, that the right is absolute. And I’m going to call
that brittle right. The other idea of
right is that it’s subject to regulation in the
name of the public welfare. That was guardian review. So if you look at
hundreds of cases during this period,
1880 to 1930, you will find that courts
have a view of right that we have lost. It’s not rights as Trumps. It’s rights that can
be seen as overcome by the public welfare, which
seems odd even for me to state. But this, after reading
hundreds of cases from this era, is what I’ve taken,
that we really have not been able to see any
other idea of right without engaging in the
kind of history that is in this extraordinary book. So what is the problem
with the brittle right? Well, the problem with the
brittle right is, by the notion of brittle, I am
suggesting that it breaks. It is perhaps too
expansive, and one engages in pricking the
boundary of the right in ways that seem to be quite
peripheral to the law. So the strong rights cases that
come at the end of the century are, indeed, it
seems to me, a break. And here’s where Professor
White may disagree with me. He believes, as
the book suggests, that they are both
boundary-picking enterprises. And I think that’s
true, but I think that the way that the
Court constructed the First Amendment, and later
other amendments, suggests to me a different
idea of right altogether. This brittle right raises
two problems in my view. One, it has caused an enormous
amount of public controversy. So brittle rights seem
that they’re absolute. So it causes a lot
of public drama. The Court’s decisions on
gay rights and abortion, not to mention speech– think of Citizens United– have generated enormous
political turmoil precisely because their adherents claim
the right to be absolute and the opponents believe
that their claims of harm, including public harm,
are not credited. Meanwhile, as the
public debate rages, the court engages
in boundary pricking at an increasing space
from the core of the right, at the margins. So we see cases about creches,
and cakes, and playgrounds, and nude dancing– very far from the
core of these rights. So I worry about brittle rights. I’m not the only one. We are coming to see, through
the great history of Ted White and others, that
the idea of right, even at the founding,
the First Amendment– Judge Campbell,
who’s at Richmond, has written a very
interesting article about how the First
Amendment was not viewed in the same
way as a brittle Trump at the time of the founding. Jamal Greene has written
in the Harvard Law Review about the way in which
other countries deal with judicial review in
which rights are not brittle. They are assessed by a
proportionality analysis. So one thing I think
that we will look back on the 20th century and see,
and with the help of Ted White we will see, that
bifurcated review has a legacy that we may not
be willing to embrace, or that is, as we see in the
gay rights cases, diminishing, where the Court has refused
to engage in strict scrutiny. OK, so I’ve talked
to you a little bit about brittle rights. I want to mention– since I’m truly a structuralist
in constitutional law, I care a lot about
Congress and the president. And I teach mostly about that. I want to leave you with
a discussion of what I call structural drift. One of the fascinating
things about this book because it is so far ranging– I was walking around
Georgetown with it in my hand, and Dan Ernst, who’s a
brilliant 20th century historian, said to me, you
haven’t read that whole thing, have you? And I said, of course, I have. Of course, I have. He sent me all the
chapters, and they’re in my study at my office. In any event, one of
the astonishing things about the book, and
we’re going to hear from Jack Goldsmith about
the foreign relations chapter, which is brilliant,
is that each of the chapters deals with a separate
episode in law. But when you add
them all up, you are led to a story about
structural constitutional law that is fascinating
in part because it suggests what I call drift. The Court has not
had a master plan. Instead, we see in a
chapter on foreign relations exceptionalism,
where the president gets to do pretty much
what he wants to do, despite the treaty clause. We see in a wonderful chapter
on the administrative state, how the rise of the
state leads not only to an expanse of congressional
power, but as well delegation. The Court may well
decide that Congress can affect intrastate activity,
the big move surrounding the switch in time. But that move actually not only
increases Congress’s power, but also increases the need
for Congress to delegate. So throughout these
chapters, what you see, they’re not all
specifically focused on the separation of powers. But what they suggest
is that the Court has engaged in these
doctrinal areas without a larger theory about
where the balance of power will land. So we see a chapter on
the administrative state, we see a chapter on
foreign relations, we see the final chapter on the
political question doctrine, each of them extraordinary. But when you add
them all up, one begins to wonder whether the
story we will take and look back on the 20th century is
whether the Court has not quite comprehended how all of
these cases come together. What I mean by this
is that there’s a series of doctrinal
decisions that had no particular
structural vision in mind and that wander aimlessly
from doctrinal area to doctrinal area without a
sense of what the result is. And I think it’s fair to
say that many in Washington today believe our
structure is heavily unbalanced toward presidential
power and judicial power. After all, the last chapter is
about the political question doctrine in Bush
versus Gore because one of the things that goes
on here is not only an increase in presidential
power but a view that the Court
itself, although it is a player in the
separation of powers, can actually determine important
separation of powers cases. So what you have here is a
relatively weaker Congress relative to a stronger judiciary
and a stronger executive. I think that’s inadvertent. I don’t think the Court– and we can see this
through the range of topics that the Court has addressed– that they do not have an
overall structural vision. And it’s very difficult
for them to have that because they are both inside
the separation of powers and reviewing the
separation of powers. So I just want to
say in the end here that I am delighted to be here. I’ve given you a couple of
ideas that have come out from this extraordinary book. It truly is masterful,
as the dean said. And I am so delighted to
be outside of Washington, to have a day of
history, and thought, and praise for work of
integrity and insight. So thank you for inviting me. [APPLAUSE] JACK LANDMAN
GOLDSMITH: So thank you so much for inviting
me to be here today for the celebration
of Ted’s book. And it’s so great to return
to the University of Virginia, where I started
my academic career and to see so many so many
friends in the audience. I want to start by building
on a couple of things that the dean said, first about
what an extraordinary colleague Ted is. When I came here in the
mid-’90s, I was your typical insecure, uncertain,
flailing young academic, not sure of my ideas, not
sure of what I wanted to write about. And Ted was truly one of
my most important mentors. He paid attention to my ideas. He appeared to care about them. He read my drafts,
and he gave me ideas. And he also demonstrated,
through his own work, his extraordinary work
capacity and work ethic. He really modeled behavior
that I came to admire and I’ve tried to
follow in my career. So I’m really just enormously
grateful to Ted for his help early in my career
and his mentorship throughout my career. The second thing is I just want
to reiterate what the dean said about Ted’s productivity. When you read the
book, the first page lists all of his books. And his first book
was written in 1968, when I was six years old. He’s written 18
books since, then for a productivity
rate of a book every– if my math is right–
two years and 10 months, which is just an
extraordinary accomplishment, especially since the
books are so great and the range is so great. So congratulations,
Ted, on your latest in a long line of great books. So this book, History of
American Law from 1920 to 2000, has all of Ted’s characteristics
front and center. It is a book that has
astonishing range. It’s about private
law and public law. It’s about constitutional law,
statutory law, and common law. It’s about domestic
law, as well as international and
foreign relations law. It’s just astonishing range. And what’s so
interesting about it is how these topics are
often treated separately in histories, in
legal histories, and he integrates
them altogether and shows how they really
affected one another. And since I’m a scholar
of foreign relations and international law,
I’m going to focus on his really great chapters
on war and foreign relations. I’m going to suggest what
some of the contributions are of these
chapters, and then I’m going to end with
a question for Ted. So one of the interesting
things about focusing in this history of American
law on foreign relations and international law
is, as Ted points out at the beginning of his
foreign relations law chapter, I think it’s that chapter,
most histories of American law generally just leave out
foreign relations law. International law is
something different. Foreign relations law
is something different. It’s not real law. It’s not real con law. It’s something separate. And Ted does not take that view. And a short anecdote
on how Ted gets up to speed on topics,
when he was thrashing me on the squash court
in the late 1990s, we would, in between games
when I was huffing and puffing and he was not
huffing and puffing, talk about my foreign relations
law scholarship at the time. And he started taking an
interest in foreign relations law, about which he knew
practically nothing then. And every time we played squash,
he would ask me more questions, and he started asking
me more questions. And then the next thing I
know these books appeared outside of his office
stacks, stacks of books. And I saw him one day carrying
these books out to his car. And then about six
weeks later, Ted White knew a lot more about the
history of foreign relations law and about what
happened in the 1930s, for example, in foreign
relations law than I did. And it’s reflected
in this book, but I remember well the origins
of the Kurdish right chapter on the squash court. I think that’s where
the origins were. I’m not sure about that. OK. G. EDWARD WHITE: –all
your ideas, Jack. JACK LANDMAN GOLDSMITH: No, no. I didn’t say that. I didn’t say that. I definitely did not
mean to imply that. OK, so I was going to
give two examples of how Ted uses developments
that he thinks are sparked by war or
foreign relations in the law to illuminate our understandings
of the history of public law in this case. The first is the impact
of war on the rise of the administrative state. As Ted points out, the state as
an apparatus for administration really gets going in an
aggressive way in the Civil War, because, as he
points out, total war and the administration
of total war takes an administrative
apparatus for tax, for conscription, for allocating
resources and the like, for controlling public goods. And Ted points out that there
was this large apparatus that developed in the Civil
War, but it dissipated. It went away after
the Civil War. But as he says, as he
argues, that didn’t quite happen in World War I. As is well known,
the early agencies in the administrative state,
at least at the federal level, started getting going in the
late 19th, early 20th century, the Interstate Commerce
Act, the Sherman Act, what was the Food and Drug
Act, the Pure Food and Drug Act. But as Ted argues,
the state, in terms of really taking over and
regulating the economy in a massive way that required
massive federal intervention and massive federal
control of the economy, including nationalization,
and price controls, and quotas and the like, that
got going in World War I. And as Ted also pointed out,
this was all news to me, basically, some
of those agencies dissipated after World
War I, but many stayed on. And Ted’s basic
argument is a couple. So why is this relevant to the
larger history of American law? He basically argues
that this was relevant because when the New Deal
comes around– first of all, he claims. I don’t know if this
is true, but he claims and it seems plausible to
me, that basically America and the United States had
become somewhat accustomed to this type of regulation,
that at least because of what happened in World War I and
because of these agencies, at least some of them had
continued after World War I, that the country had grown
accustomed to regulation of this sort. And two, and more
importantly, he says when the crisis
came in World War– excuse me. In the New Deal– that the World War I
administrative apparatus and operations in terms of
coordinating the economy was really the model and
was seen as a guidepost to the early New Deal. So that’s one way in which
war and foreign relations has an impact on domestic
law that ends up affecting other elements of domestic law. The other chapter is an amazing
chapter on foreign relations exceptionalism. This is the idea that foreign
relations law is different. It consists of
basically two ideas. First, there is a distinction
between foreign and domestic affairs that we can articulate. Foreign affairs
basically are things that happen outside the borders. Domestic affairs are things
that happen inside the borders. And although that
distinction is elusive, it’s clear in many
contexts, even though it’s elusive in some. That’s the first element
of foreign relations exceptionalism. The second one is that
basically in foreign affairs, the constitutional law
operates differently. It operates differently
because, as Justice Sutherland articulated in Curtis
Wright, and Ted does a masterful job of
unpacking Curtis Wright and its intellectual history– this was the 1936 decision
in the Supreme Court– as the Court said
in Curtis Wright, basically the sources
of federal authority that are not necessarily
from the Constitution. They may inhere in sovereignty. And that was a move
that was designed to loosen up the idea that
enumerated powers applied to the conduct of
foreign relations. And the second idea
is that there’s something about the important
role of the president in conducting foreign relations,
both because of his functional advantages, and also just
because the Constitution, as read by Sutherland,
will endow the president with these extraordinary,
and in some respects, exclusive presidential powers. And Ted does, again,
a masterful job of talking about the
intellectual history of that, of Sutherland’s early
efforts in the 1910s to articulate this distinction
between domestic and foreign affairs, and to articulate this
different constitutional basis for understanding these. And the basic idea
was, and I think Ted was the first
to point this out, was that this was a way for
the conservative justices on the Court, who were
internationalists, to have a vigorous
international foreign policy and to support that, which
they thought was important in the 1920s and 1930s,
while at the same time being skeptical
about the New Deal because the Delegation
Doctrine basically had firm bite with regard
to the domestic regulations. But Kurdish right
itself was a case about delegated
authority from Congress to the president
for an arms embargo. And the court there
basically said the Delegation Doctrine
doesn’t work the same way in the context of
foreign relations. So this foreign relations
exceptionalism idea was a way for the
conservatives on the Court, and it became more
influential generally, to continue to criticize
the New Deal for at least a few more years,
while at the same time having a robust presidency that
can conduct foreign relations. And Ted ties this in– the main way that he
ties this in to the rest of constitutional law is to
show that foreign relations exceptionalism is just a
species of the bifurcated review that he sees throughout the
rest of constitutional law. And indeed, he
argues that it was– I think he argues, basically,
that it was something of a model for a
bifurcated review at the administrative state. And it preceded it, this idea
that for certain actions, the Court would just
defer, because it was outside of its
competence, it would defer to the executive branch. And so he basically
sees bifurcated review in the foreign
relations context as of a piece with
bifurcated review, both with regard to due
process, rational basis scrutiny of economic
legislation, and also rational basis legislation defer– excuse me, deference– deference
on economic legislation, but non-deference on
individual rights issues. So these are two
of several ideas. He has an amazing account of
Lieber, and international law, and changes in the laws
of war, and the Civil War, an amazing account of the
rise of executive agreements and their importance
to constitutional law. I won’t tell you about those. You can read about those. I want to end by asking
Ted a question that he can answer if he likes. So the main theoretical
claim in the book is that there was a change,
an epistemological change, a a change to modernism,
as he calls it, or the modernist consciousness. And the idea, I
think, is that he wants to explain changes
in legal doctrine in the 20th century
as a result of changes in a modernist sensibility,
in the way we see the world. And the basic move, and I’m
simplifying quite a lot, is that human understanding
of how society gets organized in the pre-modern
era was basically there were external constraints,
external to human agency, that basically organized
or influence society. Law was one of those,
religion perhaps. And there were others. And Ted’s claim
is that there was a move to modern
consciousness, where it came to be seen that
individual agency actually was efficacious in
controlling human destiny, I’m simplifying a great deal,
and that this change had implications for judges, because
it meant judges were lawmakers, that judges made policy,
and that judges had agency. And it basically gave
rise to legal realism, gave rise to bifurcated
review, because judges shouldn’t be making policy. They should be deferring to the
elected majority and the like. So my question is
one of causation. It seems to me that
the foreign relations cases and the
International Law cases have the flavor of less
the judges because they had a different
sensibility were issuing different legal doctrines. It seems that those cases
are pretty obviously judges and
politicians responding to exogenous shocks
in the world, either about
technology or war that required a change in
society to address those exogenous and perhaps
unpredictable changes. And those changes
by legislatures, and then changes in
legal doctrine by courts, seems to me were a response
to those exogenous changes and more explained by that
than they were explained by this epistemological change. And indeed, you might even
see the epistemological claim being a result of a
consequence rather than a cause of these changes
that took place in the world. So I guess my
question is how do you tell how the causation works
and why does it matter? And since it’s a claim that
runs throughout your book, hopefully you can address it. Thank you. [APPLAUSE] LAURA KALMAN: Thank you so
much for inviting me here to celebrate this spectacular
book and historian. Ted’s work has
inspired me forever, and he edited my first book. I always remember how
after absolutely shredding my first chapter,
Ted lifted my spirits by telling me that he,
and Earl Warren and I all shared the same birthday. [LAUGHTER] In 1973, Ted was bearish
about our field’s future. A year after he
had begun teaching, he lamented that
American legal history has been one of the most
unfortunate stepchildren of the academic profession,
disdained by historians and lawyers alike, struggling
to establish itself in curricula and to disengage itself from
antiquarian, largely bereft of distinctive or
distinguished scholarship. This bleak assessment
appeared in a review of Laurence Friedman’s History
of American Law, which Ted didn’t think improved things. [LAUGHTER] The book treated law as the
mirror of, and inevitably molded by, economy and
society and focused on the relationship
between private law and economic development. Friedman, Ted
complained, neglected the role of historical
contingency, the interplay of law,
politics, and ideology in defining national values,
the mutually constitutive nature of law and history,
the importance of professional
reasoning to law, and the constitutional,
interpretive issues that focus on law’s ideological
dimensions would provide. Friedman’s history is like
a cathedral without a dome, Ted concluded. Its foundations are
intact, and a structure has been built on
them, but nothing caps. 45 years, 18 books, and
more than 100 articles later, Ted has given
the cathedral its dome. It’s majestic. In this stunning volume, we
see modernist theories of law become intellectual
orthodoxy and contribute to a new approach to judging,
administrative government, the [INAUDIBLE]
of the common law, and the shift from Republican
to Democratic constitutionalism. Law is no longer
viewed as a collection of timeless principles,
that brooding omnipresent in the sky. Rather, decision makers
influenced by legal realism understand that they
shape their own destinies. We see too how legal actors
turn to process theory to domesticate legal
realism and reaffirm faith in the rule of law amid
concerns about the rise of totalitarianism,
the move from guardian to bifurcated
review, and concern about the counter-majoritarian
difficulty. We also see doctrine
get its due. Ted has married intellectual
and constitutional history to produce a fascinating
account of the complex and constantly changing
relationship between law, politics, and culture. It’s common today to
divide legal historians into internalists
and externalists. Externalists, many of them
inspired by UVA to disagree, argue for the
importance of politics as well as law to
judicial decision-making, while internalists,
many trained here, highlight the primacy
of law over politics and the importance of
doctrine to understanding judicial behavior. For example externalists argue
that Chief Justice Hughes and Justice Roberts made
the so-called switch in time because of the threat posed by
FDR’s big win in 1936 and/or his court-packing plan, pointing
to doctrinal changes that began well before 1937
and continued afterwards, though internalists
argue, in contrast, that plausible intellectual
reasons explain the Court’s journey and that no
sudden shift took place. Ted leaves no doubt
that his allegiance is with the internalists. For example, he points out
that although the Court delayed handing down West Coast Hotel
v Parrish until the spring of 1937, well after Roosevelt
threatened to pack the court, the Justices had actually voted
on it in December of 1936, before FDR’s court-packing
plan had been announced. But for me, that doesn’t
preclude the possibility that the public outcry against
Morehead versus Tipaldo and FDR’s landslide
30 states’ win could have influenced the
Justices to vote as they did, that political considerations
affected them even if the plan, itself, did not. Well, these scholarly
disagreements keep us all employed. [LAUGHTER] The more important point is
that Ted’s book brilliantly reminds us that no pure
externalist or internalist exists. Ted himself discusses the impact
of changing judicial personnel, war, and perceptions
of race, gender roles, and sexual
orientation on doctrine. For all his success in
reviving and reconfiguring legal history, though,
I detect a note of unease in Ted’s account. The prospects for
good legal history have improved since 1973. But if the cathedral
has its dome, what has happened to the legal
historian law professor who labors at the scaffolding? Intellectual biography
may play a role in helping us
understand Ted’s unease, if I correctly
diagnosed his mood. Ted doesn’t just write history. He has a past. And odd as it seems, considering
elite law school hiring practices now, his path to
UVA was once an aberration. He is part of the pioneering
generation of legal historians who got PhDs and JDs. In the early 1960s, when
higher education was booming, Ted worked with Yale’s
great Western historian, Howard Lamar. But graduate school
disappointed him. As Ted has recalled, he
had to dress up for class, pick up his athletic
equipment, and watch grad students try to impress
their teachers with shop talk. So after receiving his PhD,
he went to Harvard Law School in ’67, when it was still under
the sway of process theory. At just this time, jobs in the
humanities and social sciences dried up, but the legal
academy was hiring and– Ted remarks in this volume– paying more than humanities
and social sciences jobs, and awarding tenure
for publishing less. So by the early 1970s, many
smart undergrads chose law school over grad school, and
guys like Ted who did well– they were mostly hes– hoped to become law professors. But as Ted explained
here, if they believed that their advanced
degrees would help them on the law school job
market, the humanities and social science’s
refugees proved mistaken. For law school
appointments committees, a PhD paled next to law school
grades, class ranks, clerkship. These attitudes
reflected, Ted says, the self-conscious insularity
of the postwar American legal profession. Embodied in a
process theory that cemented a tight relationship
between the legal academy and the profession from World
War II until the 1960s’ end, graduate training was
deemed irrelevant to one’s potential success in teaching
doctrine to law students. Nevertheless, in time,
Ted observes here, the JD/PhDs and their fellow
travelers without PhDs gained a foothold in
the legal academy. They turned away from process
theory to law and scholarship that, as Ted explained, applied
the substantive methodological training of other disciplines
to legal problems. Law and work became prestigious
in the legal academy after 1970 and contributed to the belief
that some graduate training outside law would
benefit law professors. In 2015, more than 2/3 of entry
level hires at the top 26 law schools were JD/PhDs, PhD law
professors often with little or no experience in practice. This development resulted
in theoretical and interdisciplinary research that
brought the law school closer to the rest of the university,
but as Ted observes, it deepened the divide between
law professors and the bench and bar. Like Judge Edwards,
Chief Justice Roberts complains about
law review articles with topics like the
influence of Immanuel Kant on evidentiary
approaches in Bulgaria. [LAUGHTER] So the JD/PhDs who did law
and scholarship instead of the kind of doctrinal
policy analysis that process theory
enshrined won, but at a cost. Ted speaks of a divorce by
century’s end between law faculties and their students
and between law faculties and the profession. UVA’s Tom Bergin once observed
that the law professor was a victim of intellectual
schizophrenia, which had him devoutly
believing that he can be an authentic academic
and a trainer of lawyers. Ted implies here that
most law professors have embraced the schizophrenia. They teach basic courses
doctrinally in part, Ted says, because
teaching them differently would require too much work
designing alternative course materials and distract legal
academics from what became their primary job
during the last quarter of the 20th century,
writing, Ted says, largely for themselves
and their scholarly peers. And so thanks to the transition
from process theory to Law And, we have, Ted
says, a legal academy situated only partially
in the remainder of the legal profession and only
partially in the university. Perhaps I’m wrongly
inferring that Ted seems gloomy about, or bemused,
by this victory of his guys. And maybe I’m wrong to think
of the JD/PhDs as Ted’s guys. Ted has more breadth
and more ability to reach the general reader. It’s hard to draw inferences
about Ted’s personal reactions to the developments he
so ably historicizes. I think each generation
writes its own history and that informing readers
of an historian’s biases makes them better
readers, but Ted prizes the historians’
quest for detachment. Future generations may care
about the subject matter, not the author, and he wants a
provisional, modest shelf life for his work. So Ted says in his
preface that he has tried to leave myself out of
narratives as much as possible. He succeeds. The only opinion I was
certain he really hated was Buck versus Bell. So maybe in tracing
the victory of Law And, he is simply
reporting on the state of affairs in the legal
academy, not warning about them. Even if that’s
the case though, I think Ted’s giving
up too much to those who consider contemporary
legal scholarship impractical. Just as law and
scholarship which transformed the
field of anti-trust, Ted has brought constitutional
history back to life. Judges cite his work on the
suspension and guarantee clauses. And in his last
chapter here, Ted examines con laws
Voldemort, Bush v Gore, through the lens of
the political question and equal protection
doctrines and makes the case that the Court’s
intervention was not unprecedented or inappropriate. That provocative
insight deserves to be heard by
more than scholars. So to conclude, it’s a big
deal that law professors won the freedom to write for
themselves and other scholars, but their work also
has implications for a broader audience. I think citizens, lawyers,
judges, and policymakers would all benefit from
reading this wonderful volume. Thank you. [APPLAUSE] G. EDWARD WHITE: Well,
thank you all for coming, and I hope that at least some
members of the library staff made it to this
event, because they’ve been so important in
supporting my work, not just on these Law in
American History series, but for so many years. And I just think that reference
desk and University of Virginia Law School Library is
one of the great places in legal education. So hope they got a
chance to be here, but I’m glad to see many of you. If I were Justice
Holmes, I would say the following (IN A
DEEP, DISTINGUISHED VOICE) In this symposium, my part
is only to sit in silence. To express one’s feelings
as the end draws near is too far intimate a task. [LAUGHTER] (NORMAL VOICE) And
then I would go on to talk further, actually– [LAUGHTER] –and say things like,
the riders in the race do not stop short when
they reach the goal. There is a little
finishing canter. But in any event,
enough of that. So I want to start out by saying
how helpful the work of all the people on this panel,
including Charles and Risa, have been for my own work. I want to single out
a couple of things that perhaps the
people here don’t know that I’ve learned from them. Along the way in Vicki
Nourse’s scholarship, she wrote a piece
called “The Lost History of Equal Protection.” I remember that there’s a
line from a Holmes opinion that says the equal protection
clause is the last resort of constitutional arguments. And I was always of the view
that the equal protection clause was really
largely nonexistent in the period in which
Holmes wrote that opinion, the early 20th century. Vicki has shown that
that was not the case. Vicki has shown
that, in fact, there were more equal protection
cases brought and entertained by the Court than
due process cases in the Lochner Era period. Why have we just missed this? Well, in part because equal
protection jurisprudence assumed that mere
classifications did not violate the equal protection clause. Only certain forms of very
egregious classifications did. And so equal protection
cases came to the court often in conjunction
with due process cases. That is, the litigants would
tack on an equal protection argument, thinking that it
was a way of illuminating a due process violation. And the Court over
and over again would just reject
that out of hand on the anti-classification
ground. Well, I couldn’t
really have gotten deeply into the shift from
guardian to bifurcated review and to the idea of boundary
pricking in the guardian review era without being
informed by some of that. So thank you, Vicki. Now with respect to
Jack, he has already alluded to the formative
impact of his ideas on my foreign relations work. Actually, it all started
because when Jack and I were playing squash together and
doing other athletics together, we were talking
about scholarship. And Jack wanted to focus
on foreign relations. And I felt that I
couldn’t really help, not knowing very much about it. So then he and Curt
Bradley got a project off the ground for which he
and Curt both became famous, kind of a critique of what
they called the modern position in foreign relations law. And I found that
really intriguing and wanted to learn more. And Jack is quite right that it
was the basis of conversations that I had with him that
stimulated me to think about foreign relations. And in some ways, foreign
relations, immigration, and the law of war were the
remaining strings in the bow that I was trying to
develop on over The Law in American History series. Those were areas I
didn’t know much about. I very much wanted
to fit them in. I didn’t want this to
be a partial history. I was unsure about
how to do that, and basically Jack
directed me to scholarship. I started reading widely in
foreign relations jurisprudence in the late 19th
and 20th centuries. And I started writing
some pieces on it. And I then began to
feel more comfortable about these other areas. So now with respect to
Laura, as she suggested, our relationship
goes very far back. Her first book was
Legal Realism at Yale, and what she’s referring
to is I thought it would be important
for her to start the book with a general
description of legal realism, what league realism was about. And it was that
portion of the book that we had a lot
of exchanges on. But Laura then, having
written that book, turned to writing a great many
others on law and politics in the 20th century. And what I learned
from Laura, and I bet you don’t imagine
this, was techniques of interviewing people. Laura is just
exceptionally good at doing books which require some
interviewing of people who have survived a generation
but are still alive. Her books on Yale Law School are
filled with these interviews. And she just gets people
to talk about things. And I just thought,
how does she do that? How do you dev– how do you end up
being a skillful? Well, I’ve really done
very little of this, and I’m somewhat skeptical
of an oral history. But for this book, I had to
do it, because this book is– I mean, I’m to some extent
a participant-observer in this book. And that was what
triggered that comment about trying to leave myself
out of it, because as Laura has said, in the Law And
chapter, there are really three cohorts of Law
And scholars that enter the legal academy in
the late ’60s and early ’70s, and one of them is
legal historians. The other two are sociologists,
law and society types, and of course, the very
influential law and economics cohort. But I was the first generation
of modern American legal historians. We did have the chilly reception
that Laura has described. Many of us had to
present ourselves on the entry-level
market as something other than legal historians,
because presenting us as that was perceived
as a negative. So many of us got
clerkships and advertised us as ordinary legal scholars. And then there came the
revenge of the refugees, so that is to say
the transformation of legal scholarship from
doctrinally-oriented, process theory-dominant work to
interdisciplinary work, with some of the
negative as well as the positive
consequences of that. So I felt awkward
writing that chapter. I didn’t want to write
it as winners history. And it ought not to be
written as winners history, because the center of legal
education is still teaching and doctrinal analysis. Many of us don’t do doctrinal
analysis in our scholarship, but some of us do. And it’s worth doing. And it’s certainly
worth teaching. And I mean, I have some
legal history courses organized around these books. I don’t think they’re partic–
based on course evaluations, I’m not sure they’re
a great success. Whereas if I teach torts,
I’ve got a casebook. We can do doctrine. We can have exchanges. And I think that’s
really the heart of American legal education. So I don’t think we– I mean, to the extent there’s
a division between scholarship and teaching or between
what legal scholars do and legal academics do and
the profession or students, I don’t necessarily think
that’s a good thing. But I also don’t expect
that future generations in the short run
of legal academics will revert to process theory
and doctrinally-oriented scholarship. I mean, for me, and I’m
sure for most of my cohorts, it’s just more satisfying
to get into things in the level of
depth and breadth that you do when you’re
bringing the insights of another discipline. I was sorry to hear
from Laura that I treated Lawrence Friedman
so badly in that review. I mean, Lawrence Friedman
has had a great career. I mean, any law
school would want to hire Lawrence Friedman on the
basis of his citation counts. No, but he’s a very
distinguished legal historian and a good friend. And I think I was just
trying to be a young Turk or something in that. So I want to respond a little
bit to a couple of things that Vicki and Jack said. As I understood Vicki, who’s
talking about brittle rights and the relationship
of brittle rights to bifurcated review
and boundary pricking, I don’t mean those terms
to be used in quite the way that she understood them. Boundary pricking is a technique
of judicial interpretation and analysis that I equate
with guardian review. If you have guardian
review, adopting anachronistic categories from
the present, every time you review another branch
activity, legislation or an executive decision, you’re
adopting heightened scrutiny. You’re not deferring
or not deferring. Bifurcated review is about that. Bifurcated review
is about the choice to defer or not defer, which is
largely subject-matter based. A lot follows from the choice
to defer or not defer to defer. But when you have that posture,
you are bifurcating, literally, your review process,
adopting strict scrutiny, or intermediate
scrutiny in some cases, and rational basis
review in another. That is not what the guardian
review people are doing. What the guardian
review people are doing is in the Lochner line of
cases, and in anti-trust cases, and to some extent in
equal protection cases, and to some extent in
First Amendment cases, early First Amendment
cases, what they are doing is considering whether a largely
police power-generated statute, that is, a statute based on
protection of health, safety, or morals, to what extent is
that an impermissible invasion of private rights and
to what extent is it a legitimate exercise
of the police power? Every case involving
the due process clause raises that question. The assumption is, first, that
the states have these police powers, but secondly, that
there are these private rights against the state. These private rights are
not regarded as problematic. They’re basically
treated as essential. So when the Court says
liberty, that’s what they mean. They mean liberties
against the state. So what Taft in Adkins versus
Children’s Hospital, what Chief Justice Taft described
as boundary pricking means that for every
exercise in review under the due
process clause, you prick out the
boundary over a range of cases between permissible
and impermissible exercises of police power. You put some cases on one side
of the line and other cases in another. Now there is no intimation
in these decisions that this is somehow
an illegitimate or substantive
judicial exercise. Even though the Court
is placing the cases in different categories,
how does that authority to place them– where
does that come from? It is judicially fashioned. That is regarded as
essentially unproblematic. The whole point
of guardian review is that the judge is a
guardian of private rights. They may not implement those
private rights in all cases, but that’s what they do. Bifurcated review is a
much more chastened role. And bifurcated review
presupposes a rather different judicial function. The worry of bifurcated
review exponents is the counter
majoritarian difficulty worry, the worry that judges
will substitute their views. And so why do you defer in
some cases and not in others? Well, you defer in
some cases because economic and social
rights are involved, and that seems to be
the appropriate function for majorities. You retain some of the
older view of judges as guardians of private rights,
but you don’t use those terms. You just, you protect,
temporarily protect, individual rights. So in short, Vicki, I don’t
mean to suggest that boundary pricking extends beyond. Now the last thing I want
to say is Jack’s question. It’s I hope not the
last, but the latest in a long line of
comments by members of the legal academy about
my modernist, pre-modernist modernist modernity thesis. It’s often accompanied by
a kind of rolling of eyes. [LAUGHTER] JACK LANDMAN GOLDSMITH:
I did not roll my eyes. G. EDWARD WHITE: And
basically the subtext is typically, isn’t all
this stuff that you’re calling modernist consciousness,
or epistemology, or whatever, isn’t that just, in
the end, a response to practical social things that
are going on in the culture? And so where what are
you on about with this? And all I can say to that
is that I have believed for my entire
career as a scholar that perceptions of reality are
just as important as reality, that there is a dialectical
interaction between the two, and that that dialectical
interaction ought to be captured in theories
of historical causation. And so for me, every
issue that surfaces of constitutional
law or private law has this capacity to be
described and analyzed in this reciprocal fashion. It is both a response
to what’s going on and a response of perceptions
about what is going on. Perceptions change as
much as what’s going on. And so basically
that’s my model. I’ve had a great deal of
difficulty bringing this down to Earth for
legal academics, and I probably won’t
surmount those difficulties. But this was an effort. So thank you all very much. It’s been a great
experience for me. [APPLAUSE] CHARLES BARZUN: Thank you
so much, Ted, and the rest of the panelists. We do have a little
time for questions and I think a microphone
to pass around. Oh, you got one? OK, great. So yeah, questions? Yes, George? AUDIENCE: What role is there
simply for generational change in the following,
highly simplified model? Ted, I don’t think
you would have made your reputation by saying,
I agree with Lawrence Friedman. Or a philosopher
today would not say, I agree with Ronald Dworkin. Or Jack and Curt,
they didn’t say, we agree with the [INAUDIBLE]
statement of foreign relations law. So a degree of opposition is
utterly necessary to stake out new ground and
offer a new voice. How prominent is that
as a causal explanation of the change in views
that become dominant? G. EDWARD WHITE: Me? CHARLES BARZUN: Yeah. G. EDWARD WHITE: You know,
anxiety of influence issues are absolutely critical in this. For me, the
principal explanation for historical
revisionism is not that the answers one
generation of historians gives to historical puzzles
just was inadequate, it turns out, on more
searching examination, but because younger
scholars come up with incentives to
disengage themselves from conventional wisdom so
that they can be noticed. I mean, if all you do for your
pre-tenure articles is take the contributions
of existing scholars and say, I agree with
them, that that’s going to be a very
awkward tenure process for the committee. [LAUGHTER] So I think you’re
absolutely right. And there’s just no doubt– at one point in the Law And
chapter, I talk about the fact that Duncan Kennedy,
and Bruce Ackerman, and I, without being aware
of each other’s work, wrote the same critique
of process theory at approximately the same time. Process theory was
very important for us as a negative model. We thought that the
process theorists had reached a diminished
end of their effectiveness analytically. We wanted to do other stuff. We resented the fact
that there seemed to be pressure on junior
scholars to do process theory. We wanted to stake this out. And we all this was because
we were young people. CHARLES BARZUN: Other questions? I would like to invoke
my moderator’s privilege to ask you a question
which touches on some of the things Professor
Kalman was talking about, which is– and you mentioned
in your comments– about there’s been
lots of discussion about the place of legal history
in the law school curriculum. And I’d be curious to hear
each of your thoughts, in a sense, on what
you think that is. I mean, we teach, we
have lots of classes here on legal history. But as you say, they
are not, for instance, part of the required
first year of curriculum, though there once was a
requirement at UVA Law School, a cultural
requirement in history and/or legal philosophy,
as I understand it. Why is it that a law
student should know history? G. EDWARD WHITE: I was once
part of the cohort that taught the cultural requirement. There were about
four or five courses listed in the
cultural requirement, but everybody had to
take them, take one. It’s like professional
responsibility today. I started the course
called the Judicial Role in American history
shortly after– and it was offered as a
cultural requirement course. I would have 150 students
taking the course, most of whom were sitting in the back
reading the Cavalier Daily. [LAUGHTER] Those of us who were required
to teach cultural requirement courses lobbied the faculty
to abolish the requirement. [LAUGHTER] Now we’ve had some very
successful teachers who’ve taught legal history
while I’ve been here– Mike Klarman, Risa–
and there is no question that if you’re a very
good classroom teacher, you can teach a legal
history course which students like a lot, many students take. But I don’t think you can teach
it in the conventional fashion. I just don’t. I don’t think you can
teach it conventionally out of a casebook. There are legal
history case books. I don’t think they’re
very successful. I don’t think you can
really teach it doctrinally in a conventional sense. So if we’re going to have
legal history offerings, I think we have to
understand what they are. They can be very useful. Perspectively, they can
be helpful for students that have been history majors. They can be a way in
which people get exposed to really gifted teachers. But I just, I don’t
think requiring legal history made
any sense when we had the cultural requirement. It didn’t make any sense
when I was at Harvard and we had a required
course called Development of Law and Legal Institutions. It just, it doesn’t have
to be a basic course. And to that extent,
my view, it’s not gloomy, but I just think
properly chastened expectations for the place of it in– now that’s a different matter
from in the history department, but in the law school. CHARLES BARZUN: Laura, do you
have any comments on that? LAURA KALMAN: I teach in
the history department. CHARLES BARZUN: Oh, so you
don’t– oh, that’s interesting. OK, well, that
doesn’t really rise. Are there any other questions? JACK LANDMAN GOLDSMITH:
Can I– if there’s no one, can I follow up too? CHARLES BARZUN: OK. JACK LANDMAN GOLDSMITH: On
the question that I asked and that you answered. I didn’t express it well. The question, I
actually don’t have a problem with your this
epistemological claim. The question is how
the causation runs. I think a case like Erie
is a case where clearly– by 1938, the Justices
are seeing law just in a completely
different way than they did in the early 19th century. And they just can’t
maintain the old fiction, and they need an adjustment. And in that sense, the change
of consciousness, the change, the modernist consciousness
has a real [INAUDIBLE],, in what you say. In other cases, though,
in the war cases, it seems like it’s running
in the other direction. It seems like those
cases aren’t explained by a change of consciousness
that leads them to think about executive power differently. They’re explained by, I
think, exogenous shocks about technology
and war that lead them to do things that I
think contribute to that. But I think the causation is
running in the other direction. And I’m just wondering if
that’s consistent with what you’re saying? Or is it all moving
in one direction? G. EDWARD WHITE: Oh, no. It’s absolutely not all
moving in one direction. No. Indeed, what I’m
calling reciprocal means that the causal arrow is
flowing in both directions. But I have a couple of
things to say about that. First, war cases
might be sui generis. They might just be cases– I mean, consider Korematsu or
for that matter, the Espionage and Sedition Act cases. Remember that although
these are First Amendment cases in the sense that
the claims are made, the defendants all lose. And they lose all
these the Sedition Act, seditious advocacy cases. They lose them all
until the 1930s. So I think that
war-setting cases and maybe national security-setting
cases, [INAUDIBLE] you have you have a backing away from. But as to foreign
relations itself, Jack, I would say that
foreign relations is not perceived of as different
in the sense of external to the constitutional structure
for most of the 19th century. We have a
treaty-centered regime. The assumption is that
the Executive’s power to engage in foreign affairs
is largely through the treaty process, and that
the treaty process requires Senate ratification. And the Senate is an
embodiment, if you will, of the people, generally, of
the states, in particular. We don’t move to Executive
discretion, the permissibility of agreements that are not
treaties without ratification, the constitutionality of
those, we don’t really move that until the 1930s. And I think we do, Jack,
move at that point in part because the idea
of the Executive having discretion and
not being restrained by the constitutional structure
itself, in some degree, that is a modernist development. So that’s what I say. CHARLES BARZUN: I think
that is about it for time, unless there are last,
final, quick questions. Then I’d like to thank all
the panelists and Ted for– [APPLAUSE]

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