Letter to the Editor: 9-4-19

Michael Berdan ‘22

This week, I attended the Federalist Society’s speaking engagement, Originalism 101. My attendance was motivated less by ideological affinity than by curiosity, desire to understand those with whom I disagree, and love of free Chick-fil-A. As my friends and I stood in line to pick up our food, we noticed that the more delicious spicy chicken sandwiches were disappearing much more quickly than were the original sandwiches.


In that moment, a fellow attendee advanced past us to the front of the line, went behind the food service table, and took two sandwiches—including one of the three or four Spicy sandwiches remaining. As he grabbed his food, he slyly grinned and shrugged at the line from behind the table, as if to say, “Why not use both sides of the table?” No one followed his lead.


Now, lest you think I carved time out of my dense 1L schedule to write a Seinfeldian letter about nothing, I want to get to my point. I have trouble believing that this fellow’s true motive was to share a more efficient means of distributing the food. If it were, he would have suggested his forking-line method to those in front, then returned to his position in the line. His intention was to unfairly obtain what he wanted, while “sheltering” himself under a plausible—though transparent—justification.


This type of rhetorical sheltering is often observed in politics and where politics meets law. Though I adore the late Justice Antonin Scalia as a writer (two of his books sit on the shelf in front of me as I write this), I often lamented that his ardent originalism just happened to always convene his conservative religious social aims. Many of his acolytes, in my experience, quickly hold up strict constitutional originalism to dodge questions about the social and ethical consequences of their policy goals. I question whether originalism is leading them to their conclusions or propping up a position already held.


The left is guilty of “shielding” as well. We liberals frequently shirk nuanced discussion of thorny issues like immigration, abortion, and tax policy by aggressively claiming the moral high ground and labeling any flexibility in policy a compromise in morality. Such virtue signaling accomplishes little in an ideologically diverse democracy and is likely to lead to a very disappointing result in 2020.


We can engage better with others, but only if we first engage better with ourselves. Law school is the best place to learn to hold ourselves intellectually and ideologically accountable. Surrounded by intimidatingly smart peers, we can listen and respond with vulnerability, particularly to those with whom we disagree. We can interrogate that defensive instinct within ourselves that tells us we might not be thinking, speaking, or acting sincerely. We can lay bare our true motives and do the hard work of changing them for the better—even if it means someone else ends up with that last spicy chicken sandwich.