Bradley Berklich '27
Staff Editor
This past Thursday, September 19, Judge Kurt Englehardt of the U.S. Court of Appeals for the Fifth Circuit was given a warm reception when he spoke at a Federalist Society lunch event, delivering a prepared statement about the role the Anti-Federalists played in the founding of the United States before taking audience questions. He presented as a chipper, thoughtful man, and seemed very pleased to have the opportunity to speak to law students. Judge Engelhardt was appointed to the Fifth Circuit in 2018 by President Donald Trump, and he currently serves as one of seventeen active judges on the court. Prior to his appointment to the Fifth Circuit, Englehardt served as a judge on the U.S. District Court for the Eastern District of Louisiana.
Judge Kurt D. Engelhardt speaking with Ann Kreuscher ’25
Photo Credit: UVA Federalist Society
Englehardt began by speaking about the roles the Federalists and Anti-Federalists played in the ratification of the Constitution, and how the Anti-Federalists, though they are often overlooked in favor of the Federalists, made a great number of contributions to the Constitution and the founding ethos of the United States. Engelhardt reported that the “American Nationalist” Federalists—among them the authors of The Federalist Papers, Alexander Hamilton, James Madison, and John Jay—believed in a strong, centralized national government. This ran contrary to the views of the “American Radical” Anti-Federalists that a government could only serve the people if it was small and localized, a mechanism aimed to bolster the rights of individuals and reduce the risk of tyranny.
Engelhardt at one point quoted Patrick Henry, an Anti-Federalist, whose sentiment was emblematic of the dispute: “What right had [the signers of the Declaration of Independence] to say, ‘We, the people . . .’ instead of ‘We, the states?’” Where the Federalists wanted a strong, centralized state (“rejecting a monarchy for a republic”), the Anti-Federalist vision was closer to the initial Articles of Confederation, where the powers were vested in the states, with a weak central government. Ultimately, their vision was not realized, but, as Engelhardt pointed out, the entire Bill of Rights is an Anti-Federalist invention, added to the Constitution post-hoc as a way for the Federalists to placate the opposition and secure the votes necessary for ratification.
As far as many members of the public are concerned, the Anti-Federalists have largely been relegated to the wastepaper basket of history or confined to high school American history class. “We forget the Anti-Federalists,” said Engelhardt, “because they lost the ratification battle. But they won when it came to the application of the Constitution.” Despite this, Engelhardt said that the Ninth and Tenth Amendments, designed to protect non-enumerated rights and to reserve all powers not explicitly assigned to the federal government to the states or the people, respectively, are “plow[ed] over” by the expansive interpretation of Congress’ regulatory power.
Concluding his speech, Engelhardt invoked the Anti-Federalists’ conviction to individual liberties to call upon attendees to “resist cancel culture . . . [which is] designed to suffocate free people until they forgo the joy of persuasion.” Engelhardt encouraged the listeners to speak “freely” and “truthfully” about their feelings on issues such as American exceptionalism, human rights violations in China, and the character and value of the founding fathers, whom he described as “deeply flawed men, but historic visionaries.”
At the end of his prepared remarks, Engelhardt took questions in a discussion chaired by Federalist Society President Ann Kreuscher ’25. One question was about the Fifth Circuit’s recent Supreme Court track record. In the 2023–2024 Supreme Court term, the Court reversed or vacated seven of the ten cases that it took from the Fifth Circuit. This arguably falls just short of the record for the most negative treatment ever received by a Circuit Court in a single term, a number set by the Fifth Circuit just last year, when only one of their nine judgements was substantively affirmed.
Engelhardt remarked that he obviously would have preferred different outcomes, but that he was not overly bothered by the results. To him, it was most frustrating when the Court rejected cases on grounds of standing, mired in the question of “how much does your ox have to be gored [to have a stake in the matter],” and did not reach a discussion on the merits of the arguments. He also commented that the amount of negative treatment the Fifth Circuit received had a lot to do with the circuit splits that the Fifth Circuit often generates, prompting certiorari to be granted. “Scalia said he can live with a few bad decisions, but not with a circuit split,” quipped Engelhardt. “Circuit splits are tough cases. Texas tests the government’s authority every chance they get . . . We don’t invent these cases. They come to us, and we rule on them.”
Still, the wins the Fifth Circuit did get last term were big wins. Self-described modern-day Anti-Federalists should be beaming, especially after the Court affirmed the Fifth Circuit’s decision in Security and Exchange Commission v. Jarkesy, where they ruled that defendants are entitled to trial by jury under the Seventh Amendment when the SEC seeks civil penalties for securities fraud. Trial by jury in civil cases, Engelhardt pointed out, was such a large deal to the Anti-Federalists that they very nearly did not ratify the Constitution in Pennsylvania because of its absence from the document.
The ruling removes the ability of federal administrative agencies to dish out monetary penalties in-house, and it makes a big difference. According to a 2015 Wall Street Journal article, “SEC Wins with In-House Judges,” when the SEC tried cases before an administrative law judge, they won 90 percent of the time.[1] When in federal court, that number dropped to 69 percent. The illusory nature of the Fifth Circuit K/D ratio might explain why Engelhardt is so relaxed. With Supreme Court rulings coming one after the other that curtail what he calls “gain of function regulatory bureaucracies,” it’s clearly a good time to be an Anti-Federalist.
However, when asked, Engelhardt was staunchly against the concept of judges as policymakers. Speaking negatively, he said “[people] are constantly bringing policy issues to the court. [If they] can’t convince enough people to enact the law, then [they]’ll just create a law with a judicial opinion.” For Engelhardt, “policy choices . . . [don’t] impact the fundamental principles. [They don’t] impact what we do constitutionally.”
Judge Engelhardt stayed after the Q&A ended and took time to talk with students, giving them an opportunity to meet him personally, hear more about his reading list for clerks (which includes Anti-Federalist thinkers, Loper Bright, and Scalia’s dissent in Morrison v. Olsen), and gave them a chance to examine his necktie, which bore the text of the Constitution in diagonal stripe.
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jqr9gh@virginia.edu
[1] Jean Eaglesham, SEC Wins With In-House Judges, Wall Street Journal (May 6, 2015 10:30 p.m.), https://www.wsj.com/articles/sec-wins-with-in-house-judges-1430965803?msockid=27a5e5ba31216dc8003df16f30366c7b.