The Federalist Judge
I was listening to Judge Michael Luttig the other day. If you don’t know, Judge Luttig was a “shining star” of the Federalist Society, retired from the Federal Appellate Court. He was (and to many, still is) the conservative alternative to “liberal” folks like Harvard Professor Lawrence Tribe. Judge Luttig speaks slower than he did “back in the day”, a stroke took its toll. But his mind is still sharp.
He looks at our current government as the antithesis of what “conservative” government is all about. When he talks about the Constitution, it has little to do with our current runaway executive, granted a full “get out of jail free card” from the United States Supreme Court. Luttig believes in Madisonian checks and balances, and sees most of his former Federalist Society colleagues jettisoning history in order to gain and maintain power. It clearly saddens him, a life work betrayed not by his adversaries, but by his allies.
What made me sad was that the Judge could see no way “back” to the Constitutional government we once depended upon. Even if Democrats regain some power in November, even if Trump is finally done in 2028; Judge Luttig sees our nation as altered. What will come out of this will be different, our past system beyond repair.
I don’t pretend to speak for Judge Luttig. But I do think I have an idea about what he means.
Conflicted Men
The Founding Fathers were conflicted men. We know this: they wrote of “liberty”, of “all men are created equal”, while enslaving humans. And they had differing ideas of what the government should look like. These same men who fought the Revolution, fought just as hard for their own ideas of what the American experiment should be.
As a history teacher, I taught about that chamber in Philadelphia in 1787, hot in the August sun, the windows nailed shut for privacy, where the Founders crafted the Constitution. I tried to give my students a sense of what political men of strong feelings did; crafting compromises between small and large states, northern and southern states, those who wanted a strong executive and those who feared it.
But I didn’t usually mention the men who weren’t there. For example, Virginia elected Patrick Henry (of “give me liberty, or give me death” fame) as a delegate, but he refused to go. The goal of the convention, to create a stronger Federal government to resolve the problems of the current confederation of states, was an anathema to him. He fought the Constitution from outside the room, debating against ratification in Virginia. It was Henry’s opposition, in part, that required Madison to author the Bill of Rights, outlining specifically the rights of individuals in this new Constitutional structure.
A Greater Goal
Henry remained opposed to the Constitution. By 1799, a dozen years after the ratification, both Virginia and Kentucky wrote Resolutions raising the state above Federal authority. It threatened the very structure of the Nation. Henry’s former President and fellow Virginian, George Washington, persuaded him to work from within the new system.
If I have erroneously supposed that your sentiments on these subjects are in unison with mine; or if I have assumed a liberty which the occasion does not warrant, I must conclude as I began, with praying that my motives may be received as an apology; and that my fear, that the tranquillity of the Union, and of this State in particular, is hastening to an awful crisis, have extorted them from me. With great, and very sincere regard and respect, I am—Dear Sir Your Most Obedt & Very Hble Servt.
Go: Washington
Henry changed his view. He once again gained a seat in the House of Burgesses, this time to defend the Constitution. He gave a pivotal speech against the anti-Constitutional Resolution, in spite of the cancer that was already ravaging his body.
It was near the end of both of their lives. Henry (63) died before he could officially take his seat. Washington (67) died at the end of the year. But some of their last acts were to defend the Constitution. They were two men, two old friends; who overcame differences to protect the Nation.
Failed Norms
The Founding Fathers, as flawed as they might be, created a Nation. Much of their work was done in what we would now call a “political” way, “wheeling and dealing”. A handshake, the word of an opponent, was enough to “seal the deal”. Much of the founding structure of the United States was, literally, a gentlemen’s agreement.
Can you imagine that happening today?
Judge Luttig knows that “the old way” was based on precedent, what we call “norms”. That the actions of men like Washington or Lincoln or Patrick Henry established the pattern of our government, not necessarily by rule, but by tradition. But the traditions, the “norms”, no longer matter. The new standard is that our leaders do whatever they can get away with, and perhaps even beyond that. It there’s not a law against it, do it. If there is a law against it, break it.
The fact that President Biden allowed the Justice Department to investigate and even bring charges against his own son, seems a little quaint in today’s environment, only three years later.
There are no more gentleman’s agreements.
Black Letter Law
Luttig is an older man, five years older than Washington at his death. He knows that even if our Nation begins to undo the damage done, it is a generational task, far beyond his lifespan. There is an obvious sadness in him, the knowledge that what he thought was inviolable, indestructible, he will not see again. All he can do is stop the bleeding, and begin the healing of America. He can foresee what must be done, even beyond his own remaining years.
I can’t speak for Judge Luttig. But as an older man (two years younger than Luttig, three years older than Washington at his death), I look to our future. I can prescribe what must come next, to avoid the growing shadow of an authoritarian America, even if I might not live to see it. Gentleman’s rules can no longer apply. Norms can no longer be depended on.
We need the “cold steel” of black letter law. And we need to begin in January, or we may never begin at all.
