Expanded the Range of Respectable Opinion in Constitutional Discourse

As Ilya noted yesterday, all the authors wrote postscripts for the book, some long, some short. Here’s my short one, focusing on the importance of blogs like the VC to expanding the range of “respectable opinion” in constitutional discourse:

In 2011, a law professor at Yale, defending Obamacare from constitutional challenge, claimed that only one “constitutional scholar that I know at a top 20 law school” thinks that Obamacare is “constitutionally problematic.” A year later, just before oral argument in NFIB, the same professor stated that only one law professor at a top ten law school agreed that the Obamacare was unconstitutional. The professor’s math was almost certainly somewhat off, but he was right that the overwhelming majority of constitutional law scholars at elite law schools thought that the constitutional challenge to Obamacare was not just wrong, but obviously so.

But there is a reason for this. The faculties at elite law schools are able to define what was “mainstream” in constitutional law simply by who they hire to join them. And Yale, to take just one example, has not hired a conservative or libertarian professor to teach constitutional law in my lifetime. According to an informed source at the law school, this is not a coincidence, as some of Yale’s constitutional law professors make it their business to block any right-of-center candidates. One can therefore interpret the professor’s claim a bit differently than he intended, to wit: I, and people who think like me, find the federalism-based arguments used to challenge Obamacare to be absurd; I and people who think like me get to choose who become our faculty colleagues; we don’t hire people whose ideas we find absurd; therefore, almost all of our colleagues at elite law schools find the challenge to Obamacare to be absurd. Put that way, the fact that it was difficult or impossible to find professors at schools like Harvard or Yale who supported the challenge becomes something of a tautology rather than an insight.

Twenty years ago, the virtual consensus among law professors at elite schools very well may have been the end of serious debate in the academic world. The venues for law professors getting their ideas out on controversial issues of the day were few and dominated by law professors at the top schools: the mainstream media, either through op-eds or interviews with reporters, both heavily skewed toward famous professors at places like Harvard and Yale; publications at the top law reviews, which are not reviewed blindly and therefore heavily favor the already renowned; and presentations at elite law schools, to which the overwhelming majority of invitees are professors at peer institutions. The world of blogging has upset this cozy arrangement. Good and interesting
arguments from smart people can get out to the media, other law professors, and the world at large without regard to the brand name of the author’s law school. Law professors could insist that there were no legitimate constitutional arguments to be made against Obamacare, and interested parties could easily see for themselves that this wasn’t true by reading the Volokh Conspiracy. Blogs like Volokh, along with other Internet sources such as ssrn.com and topical and timely online law review supplements, have broken the stranglehold of the progressive-Left elite on determining what constitutional arguments get to be taken seriously in “mainstream” constitutional discourse. And it’s hard not to think that the world of constitutional law is all the better for it.

Postscript to my postscript: I prepared this post on Sunday. In the interim, I received news of a Yale Law Journal symposium to be held in early 2014. As if to accentuate my point about how blogs are an important venue for promoting ideas not always well-represented in traditional elite circles, of the sixteen law professors the Journal invited to the symposium, every single one of them teaches at a U.S. News top-15 ranked law school.