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