David Dewhirst, a 2014 James Wilson Fellow, is the current Solicitor General of Montana. He graduated from Regent University before obtaining his J.D. from George Washington University Law School, where he served as president of his Federalist Society Chapter. He has clerked for Judge Lawrence VanDyke of the Ninth Circuit and the U.S. Senate Judiciary Committee, as well as serving as the Chief Litigation Counsel for the Freedom Foundation. An experienced editor and writer, David has been published in The Federalist, The Wall Street Journal, Bloomberg, and National Review.
1. Looking back, what were your favorite parts of the James Wilson Fellowship? On what topics did it bring you more clarity?
Well, I think one of the obvious answers to that question is the Fellowship I shared with other young attorneys who are in similar stages of their careers. I’m still very close with a number of the fellows from my year. I was an inaugural fellow so I’m honored to be a part of that and spending time with those fellows was fantastic. Also, anybody who knows Prof. Arkes knows that spending time with him is a gift. Just being around him, not only in the lectures but spending some time with him, was a real treat. And I think a lot of people would agree. It nourishes the soul to spend time with him. So, there are a lot of good personal memories.
In terms of the subject matter, I think getting a better understanding of Lincoln as a thinker and as a statesman was one of the biggest takeaways. It was one of the areas that I hadn’t spent a lot of time thinking about. Seeing the way that he dealt with different issues like the Fugitive Slave Act showed that this was a person motivated in a very deep and tangible way by his grappling with moral principles. He was governed by a deep sense of morality and that flowed out into the way that he interacted with other constitutional actors and the way that he conducted himself in the country during that incomprehensibly difficult time.
The other takeaway was looking at some of the more contemporary case law and seeing, as Prof. Arkes always points out, that natural law is being used and invoked all the time. A specific example that I remember is Justice Scalia’s invocation of the right of self-defense in the Heller decision. Which we look at generally in the legal community as sort of an exemplar for Originalist, technical rigor – going back and trying to chart out the original public meaning. But at the end of the day, Justice Scalia was invoking this principle of self-defense, which isn’t mentioned in the Second Amendment, and yet is obviously an axiom that undergirds our entire legal system’s moral order. So it was eye-opening to realize that even in our modern jurisprudence, particularly in the conservative community, who seem to have a hobby of being very skeptical of natural law ideas, to see that it’s actually woven deeply into their thinking and to many of their decisions.
2. You’ve dedicated much of your career to fighting for workers’ rights and civil liberties. Did the Fellowship alter your thinking on any of those areas, or did it even inspire your interest in them in the first place?
I think a little bit of both. The beginning of my career is a bit of a chaotic tale. I was scheduled to go clerk for a state supreme court justice right out of law school who then had to retire pretty suddenly right before I started because of some health problems. And so I was scrambling around and the Freedom Foundation opportunity came along. It ended up being such a blessing and such a unique opportunity to do really interesting civil liberties work and First Amendment work. And that was a great experience.
I think maybe my first introduction to the world of natural law thought and even Prof. Arkes was in graduate school. I was writing a paper on Justice Sutherland. If you read Sutherland’s opinions in the Lochner era, you see that much of his reasoning is based on this inherent dignity of the individual and that certain types of economic regulations impinge on that and cut against the grain of our basic notions about individual autonomy, ability, and dignity. That was my first introduction to natural law. And I think that curiosity that was sparked in law school was certainly nourished during the Wilson Fellowship. It was something that I got to put into practice for four or five years of my early career. So I think the Wilson Fellowship helped channel that and add more rigor to the broad-based inquiry I’ve made in the past. But I think it definitely left me with some lasting convictions that carried out into my work.
3. What led to you become Montana’s solicitor general? How do you think that your experiences with the Fellowship and in previous roles prepared you for this new position, and what are you expecting from it going forward?
So, the short answer to how I got to be Montana’s solicitor general is providence and faithful friends. My career has taken a very varied path. It does not look at all like I thought it would look like in law school and yet every step I’ve been given new and interesting opportunities to serve and to grow my legal subject matter base of knowledge. And, I can’t help but see the hand of providence and grace in that. But, along with that, just faithful friends, including some friends that I made in the Wilson Fellowship. There are people that you have developed relationships with and when opportunities come along, they think of you and then you have opportunities to take on new challenges and serve in new and exciting ways. From my current role, I have to thank a judge who’s now on the Ninth Circuit, who is a fifth or sixth generation Montanan and has deep roots in this state. Now he’s actually sitting in the state of Nevada, but he was very instrumental in steering my ship towards Montana. And so, I’d say providence and faithful friends are the culprits for how I got here.
I think that the most important experiences that have prepared me for this job have taught me how to carry on the fight. One of my professors in law school, I think he was my torts professor, said that “Civil litigation is the most combative form of violence that our society tolerates.” Which is true in a lot of ways. And that’s always stuck with me. During my years at the Freedom Foundation, you can imagine that representing workers against abusive public sector unions in the Pacific Northwest and along the West Coast was not a very politically popular position to be in. There was a lot of blowback. There were a lot of attempts at harassment, a lot of threats and besmirchment, which are not for the faint-hearted. But at the end of the day, we were helping real people, and we were helping them realize the full scope of dignity to which they’re entitled under the natural law, under our system.
It was good, valuable work. And so I think learning how to fight, learning how to deal with opposition, learning how to swim upstream in those first few years of my career was absolutely invaluable. The CEO of that organization, his name is Tom McCabe, and he’s one of the greatest Americans I’ve ever met in my life. He’s absolutely committed to doing what’s right and is a real fighter. Learning how to fight allowed me when I then went to the Department of Commerce and I was managing a huge bureaucracy dealing with all sorts of different areas of law, including international trade sanctions, the census environmental issues through NOAA, all sorts of different issues, to not really worry about doing the right thing when the right thing comes along, to just do it and the chips can fall where they may. So I think learning how to fight was probably the most important early lesson that I learned and one that I’ll be able to continue using for the rest of my career.
4. From your vantage point in this new role, what constitutional issues would you say concern you most? Going forward, how do you hope to shape state jurisprudence, national jurisprudence, or the broader philosophical conversation on these issues?
Well, I think generally when I look out from a broad, general cultural perspective, I get a very strong Brave New World vibe. There’s the old adage that most people just want to be left alone. I think it’s sort of true still but in another sense, it’s not. I mean, people want to be left alone in some respects, but they also want to use all the conveniences that Big Tech presents to them. They want to take advantage of all the benefits out there. It’s a different “leave me alone” attitude than I think was more typical in previous decades. So that’s generally concerning.
In terms of specific constitutional issues, I mean, just open the book and pick a spot because nearly every constitutional norm has already in the last few months been under attack. But I think much more broadly, one of the things that gives me concern is the infusion of an adulterated natural law reasoning that has crept into our law over the last several decades. And of course one of the poster children is Justice Kennedy who talks about everyone’s right to define reality as they see it. And Justice Scalia at the time was right to point out that that was absurd, but that’s a sentiment that’s becoming more and more prevalent. The fact that people can just define reality as they see fit, which leads to all sorts of coercions and abuses of democratic processes. But defining reality on your own is not an option in the real world, it’s just not. And so I think the further our law departs from basic truths and norms that are self-evident, the more tyrannical our governmental systems are going to grow and the harder it’s going to be for people of faith and people of common sense to truly be left alone.
One of the things that sticks to me from Prof. Arkes’s teaching is that moral autonomy is the essential presupposition for morality in law. Any moral autonomy though can pose catastrophic risks to our systems of morality and law. And I think that’s what we’re seeing now. And so in looking at what we can do to fight against this and prevent it, I think what we have to do particularly during the next several years is look at particular states and try to develop them into enclaves of common sense and natural truth. And it’s not going to be so much a “City on a Hill.” It’s going to be more of a city under siege. I think the role of solicitors general and other legal actors in these states is to defend the state’s ability to become that sort of bastion of common sense, common reasoning, common truth, and to protect against the outside pressures that are inevitably going to come crashing down on states that have the temerity to actually live out and stand up for truth.
5. You’ve been published by a range of journals in the past, both scholarly and journalistic. Do you intend to continue writing despite the demands of this new role? Are there any topics that you’re particularly interested in covering?
I would love to keep writing. I’ve been approached by a few different folks to ask for submissions. And so I’m going to find some time to do that. The pressures of this job are pretty intense, particularly right now as I’m new and getting into rhythms and getting up to speed. But I would love to keep writing. Two areas come to mind, one is fleshing out more basic associational rights, the right to free association. Even though this is a concept in American case law, it’s been around for decades and perhaps a century or more, it’s still a baby jurisprudentially. There’s a lot of work to be done in developing this area of law. And I think there’s a lot of interesting work with a natural law angle, looking through that as a prism through which you can attack this subject.
During my time representing workers, I was dealing a lot with the opposite side of the coin: compelled speech and compelled association, which are both very interesting concepts. There’s a really interesting per curiam opinion out of the Ninth Circuit in the last month or so dealing with the right of free association as it relates to compelled bar associations. So this is an area of law that’s growing slowly. It’s quiet, but there’s going to be some interesting developments in that area. And I think at the end of the day, the right of free association, it’s not an enumerated right. Obviously, it’s one of those things that we presuppose about the rights of individuals. And so no one would disagree that it exists. It’s just, it’s an interesting area that needs to be developed.
The second one is the one that I deal with on a more practical basis. And that is what do we do with so-called experts, expert organizations, and predominantly medical organizations, scientific organizations who come in and play an outsized role in our court system, but who really aren’t presenting neutral objective facts. They are in fact pedaling their preferred political narrative and in all sorts of different areas of law. What do we do with that as our legal system? And I think that’s going to continue to be a question that’s asked more and more, not just in our courts but broadly. We’ve experienced a lot of experts in the last year as it relates to COVID. And I think people are raising the eyebrow more than they ever have because it’s had a more direct impact on their day-to-day lives than maybe ever before. And so I think there’s a lot of room to explore the place of these experts and the proper scrutiny that you show to these types of organizations when they come in and claim to be presenting objective and neutral evidence.
6. Are you optimistic about the current state and future of the conservative legal movement? What do you think are the greatest challenges facing those within it who wish to preserve our constitutional heritage?
So I am naturally an optimist. I think my years of practice so far have left me an optimist mugged by reality. And so I’m a little bit cynical sometimes about what I think we can actually achieve in any particular fight. But I think the flip side of that is that I’ve come to realize that the fight itself, irrespective of whether victory is ultimately obtained in any particular fight, the fight is worth it. And I think we have a special responsibility as lawyers to be willing to jump in, particularly those who are public minded lawyers.
One of the things I think that that forms the biggest challenge is the lack of this Lincoln-Arkes attitude and preoccupation with the public good. We don’t see young men and women at the local lyceum giving speeches on public matters. We see people doing it in 140 characters on Twitter. And so dialogue itself has taken a pretty steep decline. I’ve interviewed hundreds of people for different jobs over the last several years. And one of the things that always is disappointing is that there’s this sense that people want to be under their vine and fig tree now. And they’ve already got the plowshare and my thinking is particularly while we’re young, we need to have people who are willing to serve, who are willing to sacrifice, and who understand that the vine and victory are for later. There’s a time to fight, and the fight right now is furious. We can’t really afford to have a whole lot of able, principled people sitting on the sidelines. So I would say that the biggest challenge is animating our people to want to fight.
On the other hand, I have to be optimistic to some extent that we can win some victories, and we are winning victories here and there. But like I said, at the end of the day, living consistent with moral truths, being willing to fight for those truths. That’s what allows you to sleep at night. That’s what allows you to know that you’re living a worthy life and I think we need more people doing it.