JWI Intern Peter Spence sat down for an interview with Class of 2020 Fellow Holden Tanner, who recently graduated from Yale Law School. They talked about his experience with the James Wilson Fellowship, the Natural Law, and a special program at Yale that has allowed him to spread the Natural Law teachings. The transcript of the interview can be read below.
Peter Spence: How did the James Wilson Fellowship impact your study of the law? Did you have any favorite parts of the Fellowship, and was there anything that you learned or any concepts that you learned that were not covered in law school? Do you think that the study and understanding of positive law in law school is missing or ignoring the significance of the Natural Law?
Holden Tanner: I think the thing that stands out to me most about the James Wilson curriculum is its focus on natural law reasoning. There’s a lot to be said in the law about primary rules that govern people’s conduct, when you can and you can’t make a contract or what you can or can’t do with property, and natural law has a lot to say about moral obligations on people’s conduct, just like the law does. That’s not hard to find in a law school classroom because people fall into it so naturally that they end up saying, “such and such a thing is right or wrong,” and the professor will always ask, “But is it the law?”
But there’s another aspect of natural law that is missing, which is the idea that there are certain ways of reasoning through moral and legal problems, which Professor Arkes does an extremely good job of making clear in his books and is the centerpiece of the curriculum. It’s the idea of common sense that is part of the law even if it’s never written into the law. I think that’s what’s missing from the law school curriculum: an appreciation of the principles of legal reasoning, which come, of course, all the way back to the principles of moral reasoning. Those first principles are never made explicit, nor is the reasoning, so when we depart from them in the classroom, it almost goes unnoticed.
PS: Do you envision the knowledge that you gained in the fellowship as not only being useful in law school right now but also in a future clerkship or working in private practice?
HT: I would say so. Not in the way that’s going to give you some neat trick to write a better brief of make a better oral argument necessarily, but it makes you a sharper legal thinker. It makes you understand the structure of the argument, what’s really going on when people are arguing about the law. I think that makes you more persuasive because you’re appealing to something that is really common sense.
But it also exposes you to viewing legal issues in a different way. There’s a milieu of orthodox liberal legal arguments that are acceptable in law school, and then there is a conservative resistance to that, which often draws on sources of positive law to make it stand, or even on, let’s call them “Burkean principles,” of “small c” conservatism. But there’s very little conservative strength or movement behind making an expressly moral argument about what the law should be in the discussions on law reform. I think once you open up those possibilities, then you become a better, more creative advocate. You can see the law through other dimensions because you’re not caught in this banal policy dichotomy between equity and efficiency on every problem, which is the normal way that a problem is solved in the law school classroom.
PS: You recently wrote an essay called “Constitutional Norms in Originalist Adjudication,” in which you argue that paying attention to informal norms in our legal system does not take away from the text, but rather adds value to a true originalist approach. How did your experience at the JWI Fellowship influence your thinking on this, and what kind of responses have you been getting on the piece from either your peers or other people in the legal community?
HT: JWI influenced me quite a bit to think about what kinds of reasoning are going on in legal interpretation that isn’t merely a question of linguistics. Too often, conservatives conflate the question of jurisprudence–“What is the law?”– with the question of hermeneutics–“What does this text mean?” There is a lot of law that isn’t mere textual interpretation.
What my paper is trying to get at is to say that there are other ways that the Constitution is enacted or lived out by government officials, which provides a really important piece of information to courts, because it shows them when certain kinds of actions within the constraints of the Constitution are reasonable. That’s really what norms are: reasonable settlements and reasonable expectations about the way to use Constitutionally-conferred discretion. When you realize that not all of the law is simply textual interpretation, but that in fact when we do stare decisis analysis we have to look at whether or not that precedent is workable, or when the originalist is choosing within the construction zone between permissible constructions of the Constitution, they might be looking to such concerns as to whether or not their interpretation would be workable in practice.
All this does is nudges textualists like myself to think more about those aspects of the law as they exist in practice–never to conclude that by doing a certain thing in your job as an executive official, you could somehow change the law; that wouldn’t be a lawful way to go about changing the law—but that norms convey important information that courts need in going about their tasks.
Much of that ties into JWI’s emphasis on understanding the reasoning underneath the law. When most originalists see the argument, they’re unsurprised by the argument; it fits into their understanding of how the law operates. That’s one of the benefits of, instead of having a constant war between law and morality as though they are two sharply differentiated things, getting thinkers together who think in legal terms, but also understand that there’s a basic morality undergirding law, and who can translate those moral rules or axioms into legal language. It’s not a way to smuggle in a concept that isn’t part of the law, but it’s a way of understanding that they’ve been a part of the law all along; we just didn’t have the right terms for them, or we’re talking about them in different terms today.
PS: You’re currently teaching a for-credit class at Yale. What is the name of the course, what’s it about, and why is this so unique at Yale for a 3L to be teaching his peers?
HT: At Yale, we have a unique system called the “reading groups.” These are student-led, for-credit seminars that put students together under the advising of a professor on topics that are not covered in the major law school curriculum. It has allowed the conservative students to band together and fulfill their mission of forming a “school within a school,” one that teaches the parts of the curriculum that are not well-taught elsewhere. Since my 1L spring, I’ve been involved in teaching these reading groups.
Through this system, I’ve been able to participate in a long-standing tradition of conservative students keeping alive this refuge for conservative thought, where those ideas are transmitted year-to-year, and new, cutting edge ideas are explored. The title of the course this term is “Conservative Legal Interpretation: Originalism and Textualism.” It is mainly focused on whether or not there is a distinctive, conservative form of reading legal texts. By and large, originalism and textualism stem from a common impulse: the idea that the meaning of law needs to be conserved over time, and that it shouldn’t be altered without a lawful mechanism for doing so.
The idea that the meaning of law should be conserved over time plays into broader questions about jurisprudence, and about questions such as “what does it mean to have the law be changed?” or “What does it mean to have background norms of the law like the common law or the natural law influence our interpretation?” This term, we have worked through the textualist revival in the 1980s, the rejection of strong intentionalism and pragmatist interpretation, and then picked up many of those statutory interpretative principles and moved them into Constitutional law to ask whether or not they apply in the same way. Thus, we laid the groundwork for an originalist jurisprudence that works rigorously through the available content of the original meaning of the Constitution.
What we see emerge in that conversation is that statutes can’t be read without understanding the Constitution behind them. You have to ask, “What are the powers by which these statues are made? What are the rights and the common law background against which they’re read?” When you understand that you can’t understand statutes without understanding the Constitution, the question then becomes, “By what background do you understand the Constitution?”
It’s at that point that students are really about to open up and understand that there’s a broader conservative theory of law, a view that might include the natural law or the Anglo-American legal tradition. It certainly includes some background norms of the common law and the Founding, which influenced what our Constitution means today. The point of it is not to move people beyond the text, but for them to get a fuller understanding of the text by reading it for all that it is.
PS: Does this allow you to present information that students don’t normally come upon in the law school curriculum?
HT: I would say so. Last term, we centered our reading group around conservative and libertarians proposals for legal reform. This was a more free-wheeling class that addressed dozens of topics of interest to conservative and libertarian students for how the law might change. There were arguments that certainly weren’t being made elsewhere; everything from the administrative state, to the future of abortion jurisprudence, to qualified immunity.
This term, we’re more methodologically focused, and I think that’s a healthy balance for understanding that the law really consists of both. There are inevitable normative questions that arise as you’re reading statutes about the divide between what counts as law and what counts as policy, the latter being outside the judge’s ambit.
Those questions inevitably regress to a theory of what law is. When you hit that point, you really can’t avoid questions like, “what does it mean to have a government ruled by the consent of the governed?” Or with individual rights, “what is the original meaning of the word ‘right’ in the Constitution?” I think those concepts are inherently moral. Others might say that they can always be answered with an empirical question, but I guess our disagreement is that I think morals are empirical facts.