Jacob Smith ‘23
Professor Liason Editor
The weekend before spring break saw large numbers of formally-dressed students roaming the halls of the Law School—an unprecedented event for current students. These sharply dressed individuals were attendees at the 2022 Federalist Society National Student Symposium, titled “The Federalists vs. The Anti-Federalists: Revisiting the Founding Debates.” For those students unable to attend, this article offers a brief summary of some of the symposium’s events. Recordings are available at the Federalist Society’s website.
Pictured: Governor Glen Youngkin. Photo by Julia Davis.
Keynote address
Governor Glenn Youngkin’s keynote address opened the symposium on Friday night. Governor Youngkin was introduced by Dean Risa Goluboff to a standing ovation from a packed Purcell Auditorium. The keynote addressed three constitutional issues. Governor Youngkin emphasized the importance of free expression, telling the crowd that intolerance, the “growing tendency to loathe rather than listen,” was a greater threat to American democracy than the “tyrant” Russian President Vladimir Putin. He also emphasized the importance of the rule of law and praised the Federalist Society for helping to support and develop good judges.
But the bulk of the keynote, like much of the symposium, had to do with federalism. Governor Youngkin contrasted the gridlock in Congress with the productivity of the Virginia General Assembly. While Congress only passed 89 bills in a recent year-long session, the General Assembly might send its governor 3,500 to 4,000 bills in a four-year term, each bill addressing a single subject. As further proof that state legislatures get things done, Governor Youngkin pointed to a recent bipartisan bill that gave Virginia parents the power to decide whether their children would wear masks in school. Governor Youngkin invited law students to find work at their state capitals, where the government is “working hard,” not “barely working.”
Populism and the Anti-Federalists
In a Saturday panel discussing populism and the Anti-Federalists, UVA Professor G.E. White offered perhaps the boldest response to the topic, arguing that the colonial era—as well as the current day—was just too different from the late-nineteenth-century period when “populism” was coined for the label to be used intelligently. Old Dominion Professor Michelle Kundmueller thought the Anti-Federalists would have been concerned about populism, fearing that it would erode individual rights and pave the way for tyranny, while Yale Professor Akhil Reed Amar saw their key contribution to popular control of government as the jury, which has lost influence over time.
Modern federalism
Later on Saturday, a judge-heavy panel took up the topic of federalism in the twenty-first century. Sixth Circuit Judge Jeffrey S. Sutton emphasized the importance of state courts, given the sheer number of cases handled in them, and described state constitutions as making possible a bottom-up way of developing constitutional law. California Supreme Court Justice Goodwin H. Liu brought up the “federalism discount,” the watering-down effect that occurs when a legal reform is enacted at the federal level, while UVA Professor Julia Mahoney identified takings, eminent domain, and economic liberties as areas where the interplay between state and federal government was especially interesting and increasingly important.
Plenary federal power
In the symposium’s only debate, Georgetown Professor John Mikhail faced off against Stanford Professor Michael McConnell. Professor Mikhail took the position that the Constitution vested the federal government with broad implied powers. He pointed to the fears of the Anti-Federalists and the practices of the early federal government as positive support for broad implied powers, and explained the Federalists’ silence regarding them as calculated to secure support for the proposed Constitution.
Professor McConnell attached more weight to the Federalists’ stance in arguing that the Constitution did not originally establish a powerful, consolidated federal government. According to him, the modern federal leviathan was more a function of intervening historical and constitutional changes, such as the Civil War, which transformed how Americans viewed the United States; the Fourteenth Amendment, which nationalized individual rights; the Sixteenth Amendment, which gave the federal government access to the nation’s wealth; the Seventeenth Amendment, which removed a state check on the federal government; the Eighteenth Amendment, which led to the creation of a national police force; and the modern integrated economy, which vastly expanded the reach of interstate commerce.
Space does not allow for full treatment of the symposium’s two other panels, which addressed Federalist and Anti-Federalist perspectives on executive power and originalism. For those who attended, the symposium offered the chance to hear from nationally recognized legal scholars as well as an opportunity to rub shoulders with students from other law schools. But the symposium had independent significance in the fight against COVID: as the first in-person convening of the National Student Symposium since the start of the COVID-19 pandemic—and what I would guess was the largest public-facing event at the law school since then as well—it represented a milestone in the Law School’s slow journey toward post-pandemic normalcy.
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js3hp@virginia.edu