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Now that legal academics have been reshaped by market forces into variations of public intellectuals (including markets for career advancement and peer reputation and institutional views of the maximization of academic labor exploitation for their own ends), and for the well placed players in the public space, it is always fun to see how elite or apex forces within this self-constructed (though well recognized) status hierarchy distill orthodoxy for the rest of us. It is even more fun when there is schism among members of the apex magisterium. And all of this sends me running back to reread the passages in Nietzsche's Twilight of the Idols (Götzen-Dämmerung)
"There are parties at the present day whose one aim and dream is to make all things adopt the crab-march. But not everyone can be a crab. It cannot be helped: we must go forward,—that is to say step by step further and further into decadence (—this is my definition of modern “progress”). We can hinder this development, and by so doing dam up and accumulate degeneration itself and render it more convulsive, more volcanic: we cannot do more." (Nietzsche, Twilight of the Idols, 1988, 1911 Ludovico trans); Skirmishes in a War with the AGe, ¶43)).
In this case, the triggering event (as it was between 2016-2020) is the person and the personal style of candidate, then President, then former President, then defendant, then again President, Trump. Mr. Trump is at his best when he provokes; and he appears to have an enormous talent for doing that. Whether the talent extends to more ambitious domains remains to be seen, and in any case it will be those who bother well after the current occupants of this planet are long dead, that any such judgement can, with some assurance, be made and remade to suit the times.
The object of the provocation goes to the essence of rule of law and President Trump's relation to it. More specifically, the President's attack on the core self conceptions of the structures and institutions of the of enterprise of law as it is performed in courts and attended to by lawyers guided by academics (when it suites either). To this one adds the space of a substantially radical rethinking of terms and ideas about law that appear to transform meanings and assumptions that have taken the greater part of a century to perfect to this point and which, therefore, along with their positions in it, must be protected,. The response was a letter from a number of faculty at Harvard (A Letter to Harvard Law Students), followed by a counter statement by another (An Open Letter To My Students). Both letters appear below. They are by no means the only expression of and an attempt to frame an orthodox sentiment among the higher status reaches of the American legal-academic community and elite lawyer organs (see, e.g., Academic
Leadership Responds to the President Trump's Directives: Statement of
Leaders of the Association of American Law Schools, "Standing Together
in Support of Higher Education and the Legal Profession" and "Bar
Organizations’ Statement in Support of the Rule of Law").
In their essence, the orthodox majority quite eloquently makes the case for the enterprise of law operating as a collective "Great Questioner." Perhaps the best example of the type, and its tropes, can be found in the Book of Job in the role reserved for Satan within the dialectical ordering of the cosmos. Satan, it might be recalled, appeared before God questioning the extent of Job's devotion to God and his commandants, and suggesting that this devotion be tested for its content and sincerity, a test to which the Supreme Divine Presence agreed. Satan here can be understood as engaging in the perhaps undesirable by essential job of quality control, of testing system and application, and of questioning its soundness, especially for the fulfillment of internal soundness and against external threat. In this case the threat is to the internal soundness of the current system against the external threat, not of Satan, but of a force that would undo the divine order itself, that would "do evil" in the sight of the normative system.
6 Now there was a day when the sons of God came to present themselves before the Lord, and Satan came also among them. 7 And the Lord said unto Satan, Whence comest thou? Then Satan answered the Lord, and said, From going to and fro in the earth, and from walking up and down in it. 8 And the Lord said unto Satan, Hast thou considered my servant Job, that there is none like him in the earth, a perfect and an upright man, one that feareth God, and escheweth evil? 9 Then Satan answered the Lord, and said, Doth Job fear God for nought? 10 Hast not thou made an hedge about him, and about his house, and about all that he hath on every side? thou hast blessed the work of his hands, and his substance is increased in the land. 11 But put forth thine hand now, and touch all that he hath, and he will curse thee to thy face. 12 And the Lord said unto Satan, Behold, all that he hath is in thy power; only upon himself put not forth thine hand. So Satan went forth from the presence of the Lord.
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One might be excused for thinking that it is in the institutionalization of this now collective role for the "Questioner" and from out of which an orthodoxy of belief can be elaborated, protected, tested and perfected might lie (well) beneath the text of A Letter to Harvard Law Students. The application by the Harvard professoriate might appear to be making a case for the structural integrity of this functionally differentiated task (especially for legal, academic, and judicial elites as servant and leading forces of the masses) that both exposes evil and solidifies (and affirms) orthodoxy. The effect is to transform what might be a compelling analogy of this holy task Satan to the scriptures of the Republic and the essence of its pathways to the right path and salvation. And in a Nietzschean sense, it indulges in the sort of revaluaiton of values that tends to be a defining characteristic of certain social collectives; it transforms what had been signified as evil, a thing despised, into what is an essential good for the proper functioning of the community and the fulfillment of its values. This, then, is the orthodoxy of the eternal (and structural) questioner of and as the embodiment of orthodoxy:
While reasonable people can disagree about the characterization of particular incidents, we are all acutely concerned that severe challenges to the rule of law are taking place, and we strongly condemn any effort to undermine the basic norms we have described. On our own campus and at many other universities, international students have reported fear of imprisonment or deportation for lawful speech and political activism. Whatever we might each think about particular conduct under particular facts, we share a conviction that our Constitution, including its First Amendment, was designed to make dissent and debate
possible without fear of government punishment. Neither a law school nor a society can properly function amidst such fear.
But what is questioned? Not the debates and dissent within the community, but those deemed to fall beyond it. And these are the product of signifying actions and measuring these actions, so signified, against a measure made of (interpreted to) their own liking. It is a questioning of foreign objects to the body politics--of infiltrators and masked deceivers--the sort of persons, conditions, and actions that would have been the stuff fit for inquisition. That sets up a sort of semiotic loop in which stability emerges from the protection of the "Questioner", but that a community of "Questioners" is essential for the proper functioning and stability of the system questioned. At its most elegant, perhaps, one can see the elements of a fundamental socio-political dialectics built into the statement, but one that is functionally differentiated and hierarchical. An orthodoxy of "Questioners" suggests that stability is built only on an institutionalized dialectics, one that finds its counterpart within the Marxist-Leninist concepts of mass line dialectics and democratic centralism, or perhaps the operations of a magisterium. But like Satan in Job, it is left to the insider to question--one who is fashioned for that purpose; and what may not be questioned are the fundamental operating rules within which the necessary questioning, within the system, may be undertaken. Satan, in Job, performs the role of quality assurance, in a way, and of signifier of the supremacy and stability of the system within the structures of which Job must conform.
Orthodoxy, however, even one in which dissent and debate are tolerated, and especially protected when undertaken by socially designated and functionally differentiated types (the lawyer, the judge, perhaps the institutions serving the law-industrial complex) must protect its orthodoxy. And here, as the Letter to Harvard Law Students suggests the protection is against those who would upset the processes and structuring of dissent and debate, and its hierarchies and institutions, by seeking to end run or up end both--even if it is done in the name of a common effort to realize or protect core values and premises. That, then, is precisely the problem, and the nature of an orthodoxy built on dialectics (their dissent and debate)--the semiotics of "in the name of." That is the essence of orthodoxy within collectives bound by shared meaning of signified objects (virtual and physical--lawyers, judges, universities, rule of law, etc.). That is neither bad nor good, it is, and in its nature is politics--in the sensse of being an object and objectification of the polis.
And what of the person who would question those who must question, or the orthodoxies of Questioner systems? Professor Vermeule reminds one that even in its composite form a committed community (an interesting reconception of the ubiquity of Mark's "Legion" (Mark 5:9))--that is, in semiotic terms, a singular community of individual believers--the questioner must be questioned. That is the essence of the dialectics of questioning. This is so, it might be posited, even as that questioner of questioners remains wholly committed to the enterprise of orthodoxy--it is just that orthodoxy is neither stagnate nor necessarily without its nuance and contradictions.
The central vice of the collective letter, then, is that it is tendentious. It attempts to appropriate a shared ideal and turn it to sectarian ends, implicitly aiming to define anyone who disagrees as an opponent of the rule of law altogether. In doing so, it runs the grave danger of causing or at least licensing anyone who does not agree with those sectarian ends to see all talk of the rule of law as a political sham - a disillusioned and cynical view that I do not share, and that I spend considerable time trying to persuade my students not to share. The collective letter thereby risks discrediting the rule of law itself. (An Open Letter To My Students)
What is the antidote? More rather then less discourse; Less rather than more certainty that some group of the elite collective has a definitive hold or authority on the construction, application, and elaboration of the core elements of the principles of the Republic; and around its edges, disagreement even about the meaning of the terms at the heart of the political community--of its significs and certainly of its interpretation, and the limits to which both are possible.
But the very question at issue is what is to count as “lawful and ethical,” and who gets to define what those terms mean. And that is what makes the ideological selectivity of the letter both painfully obvious and deeply corrosive of the shared ideal of the rule of law to which it appeals. Two can play at the game of ideological definition, but when they do, both will lose. (An Open Letter To My Students)
That may well work in the internal contestations among members of a community each with equal standing and the power of persuasion. But there are other models, the premises of which run deep. "6 Then answered the LORD unto Job out of the whirlwind, and said, 7 Gird up thy loins now like a man: I will demand of thee, and declare thou unto me. 8 Wilt thou also disannul my judgment? wilt thou condemn me, that thou mayest be righteous? * * * 14 Then will I also confess unto thee that thine own right hand can save thee." (Job 40:6-8, 14). This is what the orthodox rely to the heretic. This is how the barrier between orthodox dissent and debate are separated from insurrection and chaos. Management, even management of institutionalized forms of dynamic dialectics, provides the structure, and also its politics. It is here that Professor Vermeule appears to be the semiotician in a well ordered and well managed dialectic process that comes together to protect itself against the disruptive (outside) forces of heresy. And well they should if they mean to preserve their systems and their prerogatives as they have ordered them.
Do not get me wrong. All of these actors and their discourse are to be celebrated (in the old sense of praising with appropriate rites), and their insights considered by those of a mind to do so. All of these actors and personalities are eminent; they are all learned in the law and in the systems they seek to preserve in its current form and with its current institutionalized power relationships more or less intact; all of these actors care deeply about the things they care about; some view themselves and have been viewed by others as playing essential roles as the leading forces of the vanguard the mission of which is to protect the integrity and solidity of the enterprise of this Republic, even from itself; some of those things they care about are our Republic, its stability, solidarity, and the values and operating premises around which collective stability and solidarity are possible, that is they care about the structures and forms of dialectical politics; all of these actors serve as instruments of a social order(ing) in ways that the premises of the social order itself appears to provide--until it does not. They all serve themselves by serving the social order; and they serve the social order by reflecting it as they have been taught and now teach in ways that make the significs of both meaningful to them (certainly), and by the projection of the authority with which they are endowed by their creators (and perhaps by their own hand) to others. And they have been taught in ways that reflect not just the power of collective meaning making, but also its habitus, within the academy, and its lebenswelt, within the wider society they mean to manage, perhaps lead, but certainly serve to protect it from itself. It is in this sense that they are, we all are, instruments of and within the collective; willing instruments sometimes, and more detached sometimes as well; instruments that can be well rewarded for the personal talents, circumstances, and choices that have created a space for them in society and assigned that space specific tasks--if one understands social and collective self-preservation, the protection of social integrity and, according to its ideology, its perfection as tasks so internalized that it becomes invisible.
The focus of those letters, then, is politics and the normative basis for the organization and functioning of liberal political societies, and by reference to that measure, the actions they believe may pose a threat to both. This is fairly straightforward material, the expected stuff of the contemporary public intellectual deeply engaged in the political moment. It is directed against THE adversary, into who/which a very large bucket of fears and distaste have been poured in order to give that adversary the form against which the principles of orthodoxy might be better exposed. In that sense, and within the broad spectrum of values in this Republic, there are no surprises--about the range of values, their contestation, and the forms in which those take. But it, and the response, also are wonderful mechanisms for exposing what may perhaps be the deeper cultural and discursive templates within which all of this back and forth is scripted. It is to that, and its semiotics, that bit of time spent on their examination might be time well spent.
A LETTER TO HARVARD LAW SCHOOL STUDENTS
March 29, 2025
To our students:
We are privileged to teach and learn the law with you. We write to you today—in our
individual capacities—because we believe that American legal precepts and the institutions
designed to uphold them are being severely tested, and many of you have expressed to us your
concerns and fears about the present moment.
Each of us brings different, sometimes irreconcilable, perspectives to what the law is and should
be. Diverse viewpoints are a credit to our school. But we share, and take seriously, a
commitment to the rule of law: for people to be equal before it, and for its administration to
be impartial. That commitment is foundational to the whole legal profession, and to the special
role that lawyers play in our society. As the Model Rules of Professional Conduct provide: “A
lawyer is ... an officer of the legal system and a public citizen having special responsibility for
the quality of justice.”
The rule of law is imperiled when government leaders:
• single out lawyers and law firms for retribution based on their lawful and ethical
representation of clients disfavored by the government, undermining the Sixth
Amendment;
• threaten law firms and legal clinics for their lawyers’ pro bono work or prior
government service;
• relent on those arbitrary threats based on public acts of submission and outlays of funds
for favored causes; and
• punish people for lawfully speaking out on matters of public concern.
While reasonable people can disagree about the characterization of particular incidents, we are
all acutely concerned that severe challenges to the rule of law are taking place, and we strongly
condemn any effort to undermine the basic norms we have described.
On our own campus and at many other universities, international students have reported fear
of imprisonment or deportation for lawful speech and political activism. Whatever we might
each think about particular conduct under particular facts, we share a conviction that our
Constitution, including its First Amendment, was designed to make dissent and debate
possible without fear of government punishment. Neither a law school nor a society can
properly function amidst such fear.
We reaffirm our commitment to the rule of law and to our roles in teaching and upholding
the precepts of a fair and impartial legal system.
Sincerely,
Bill Alford
Deborah Anker
Sabi Ardalan
Oren Bar-Gill
Elizabeth Bartholet
Christopher Bavitz
Lucian Bebchuk
Yochai Benkler
Sharon Block
Gabriella Blum
Nikolas Bowie
Molly Brady
Scott Brewer
Guy-Uriel Charles
John Coates
I. Glenn Cohen
Andrew Manuel Crespo
Christine Desan
Ryan D. Doerfler
Charles Donahue
Benjamin Eidelson
Einer Elhauge
Richard Fallon
Susan H. Farbstein
Martha Field
William Fisher
Idriss Fofana
Jody Freeman
Jacob Gersen
Jeannie Suk Gersen
Tyler R. Giannini
Ruth Greenwood
Michael Gregory
Jim Greiner
Annette Gordon-Reed
Janet Halley
Jon Hanson
Sheila Heen
Howell Jackson
Vicki Jackson
Alan Jenkins
Elizabeth Papp Kamali
Andrew Kaufman
Randall Kennedy
Duncan Kennedy
David Kennedy
Michael Klarman
Reinier H. Kraakman
Adriaan Lanni
Eloise Lawrence
Richard Lazarus
Emily Broad Leib
Jill Lepore
Lawrence Lessig
Christopher Lewis
Anna Lvovsky
Kenneth W. Mack
Bruce H. Mann
Frank Michelman
Martha Minow
Robert Mnookin
Naz K. Modirzadeh
Daniel Nagin
Alexandra Natapoff
Charles Nesson
Gerald L. Neuman
Richard Parker
Todd Rakoff
Daphna Renan
Mark J. Roe
David Rosenberg
William Rubenstein
Benjamin Sachs
Lew Sargentich
Larry Schwartztol
Carmel Shachar
Hannah Shaffer
Joseph William Singer
Holger Spamann
Carol Steiker
Henry Steiner
Nicholas Stephanopoulos
Matthew C. Stephenson
Kristen Stilt
Ronald S. Sullivan Jr.
Laurence H. Tribe
Mark Tushnet
Rebecca Tushnet
Dehlia Umunna
Rachel Viscomi
Laura Weinrib
Lucie White
David Wilkins
Mark Wu
Crystal S. Yang
Jonathan Zittrain
All 96 signatories are
members of the HLS voting
faculty (active or emeritus).
* * *
An Open Letter To My Students
Dear Students:
You may have seen a collective letter, signed jointly by more than 90 of my colleagues, titled “A LETTER TO HARVARD LAW SCHOOL STUDENTS” and addressed “to our students.” The signatories to the letter, however, also purport to speak merely “in our individual capacities.” This letter I am writing to you now, by contrast, really is my personal response and represents a dissenting view.
The subject of the collective letter, and of this one, is the rule of law — an ideal or principle to which I emphatically subscribe, although I hold with Lon Fuller that like all other legal ideals and principles the rule of law has outer boundaries and limits. As you will see, my response to the collective letter’s treatment of the rule of law is not indignation, but instead a kind of sorrow for the enterprise of law teaching and legal scholarship, a noble enterprise with an intrinsic integrity, of which Harvard in former years could rightly boast.
It would be easy to offer essentially procedural and putatively neutral objections to the collective letter. In virtue of its joint signature list, its collective voice, and its claim to portray itself as a consensus statement of those who otherwise disagree, the letter hovers ambiguously between a statement of the faculty as such and a mere aggregation of “individual” views. It condemns legal policies on which eminent lawyers in good faith observably disagree, even while portraying itself as committed to honoring “diverse” viewpoints. Worse still, it speaks only to the “fears” of some, not all, of our students, and threatens to inflame the fears of other students.
Let me expand upon the last point. Among you, the students of Harvard Law School, there is a surprisingly large and intellectually powerful contingent who are conservative in some sense or other, many of whom support the current President and the legal policies of his administration. What exactly are you supposed to think when an overwhelming supermajority of the faculty, although purporting to speak “in their individual capacities,” jointly condemn those policies? You might be forgiven for wondering if you will get a fair shake during your time at the law school. Perhaps that concern will turn out to be objectively warranted, or perhaps it won’t. But the concern in itself is entirely legitimate, and as the collective letter speaks to the “fears” of other students without asking whether those fears are objectively justifiable, it seems only fair to do the same in the other direction.
All that said, however, to limit myself to procedural objections would duck the real issue. The real issue is that the collective letter, although no doubt offered in good faith by its signatories, is shot through with selective ideological blindness. It is, I am sorry to say, a sectarian document cast as an appeal to high principle. Let us here ignore all other political controversies in recent years, and confine ourselves to those directly involving lawyers, judges, and legal representation: Where were the letter’s signatories when federal prosecutors took the unprecedented step of bringing dozens of criminal charges against a former president, who also happened to be the leading electoral opponent of the then-incumbent president? Where were the signatories when Jeff Clark, Rudy Giuliani, John Eastman, and other lawyers were disbarred or threatened with disbarment, and indeed prosecuted, for their representation of President Trump? Was this not a threat to the rule of law? Where were the signatories when radical activists menaced Supreme Court Justices in their homes, or when a mob hammered on the doors of the Supreme Court itself? Where were the signatories when the Senate Minority Leader shouted to an angry crowd outside the Court that “I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions”? Were these not also literal threats to the rule of law?
Now, of course, one can always say that “well those prosecutions or disbarments or protests were actually warranted, you see”; and the collective letter is careful to insert the qualifier that it only defends “lawful and ethical” representation. But the very question at issue is what is to count as “lawful and ethical,” and who gets to define what those terms mean. And that is what makes the ideological selectivity of the letter both painfully obvious and deeply corrosive of the shared ideal of the rule of law to which it appeals. Two can play at the game of ideological definition, but when they do, both will lose.
The central vice of the collective letter, then, is that it is tendentious. It attempts to appropriate a shared ideal and turn it to sectarian ends, implicitly aiming to define anyone who disagrees as an opponent of the rule of law altogether. In doing so, it runs the grave danger of causing or at least licensing anyone who does not agree with those sectarian ends to see all talk of the rule of law as a political sham - a disillusioned and cynical view that I do not share, and that I spend considerable time trying to persuade my students not to share. The collective letter thereby risks discrediting the rule of law itself.
As for my students who do not support the policies of the current administration, and who do share the fears described in the collective letter, here is my commitment to you: I will make every best effort to teach you the law, insofar as I understand it, without fear or favor. Although I will sometimes offer my own interpretation of contested concepts, like the rule of law — it is impossible to teach law without doing so — I will explain when, where, and why those interpretations are contested, and what other views of the concepts are. Most of all, I will not use tendentious definitions of contested concepts to rule your own views out of bounds, implicitly but unmistakably.
I happen to hold, with Montesquieu and against Hobbes, that at least some claims about law are justified by their real truth, not by mere authority. Errors about law have no rights. But the classroom is a uniquely structured space with definite objectives, and legal doctrine has its own inner integrity. Just as the scholastics of the Middle Ages could, while agreeing that the truth is unitary and discernible, structure their doctrinal debates so that all could participate in deliberation about truth on impartial terms, so too within the space of the classroom. Even if error has no rights, I have duties as a teacher, and one of my duties is to teach you what I take to be the truth while also respecting that a good teacher fails to teach well by smuggling conclusions into the premises, or by ruling out in advance, through implicitly sectarian definitions, the questions that must be faced and answered along the path to truth. It is precisely because I believe in truth claims about law that I hope to put errors in their best possible light, so that their eventual refutation will be all the more convincing.
To be sure, I can hardly promise to always be right about the law. I have been wrong about it more times than I care to remember. But I can promise that I see no value at all in trying to stifle your deeply held beliefs by stipulation, selective condemnation, and tendentious appropriation of shared ideals. All these I take to be the vices of the collective letter, and the reason I could not sign it.
— Adrian Vermeule
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