Several weeks ago, I received an invitation that I could not refuse. Sheldon Gilbert, the president of the Federalist Society, the highly influential organization of conservative and libertarian lawyers, invited me to moderate a debate at the Society’s annual convention in Washington, D.C.
The debate was slated to be one of the highlights of the convention and would draw around 2,000 attendees.
I’ve long been an admirer of the Federalist Society’s commitment to debate, which is its primary reason for being. Most of its many events across the country bring together people who disagree — sometimes vehemently — but are willing to engage with each other’s arguments in good faith and with respect.
For example, a discussion about abortion will involve a thoughtful pro-life advocate and a thoughtful pro-choice advocate. A discussion about religious liberty will involve a person of faith and a secular humanist.
This commitment to hearing from all points of view was on full display in the debate I was asked to moderate. Gilbert told me that he wanted to take the most contentious issue in the culture wars today and model how Americans can approach our deepest disagreements with civility and respect for the dignity of those with whom we disagree.
He found that issue: Do parents have a constitutional right to know and consent to a public school’s facilitation of their child’s gender-identity transition?
The debaters were Kristen Waggoner, arguing the affirmative, and Mary Ann Case the negative.
Waggoner, one of the nation’s leading Supreme Court advocates, serves as president of the Alliance Defending Freedom, which describes itself as “the largest legal organization advancing every person’s God-given right to live and speak the truth.”
Case is the Arnold I. Shure Professor of Law at the University of Chicago Law School and one of the nation’s foremost scholars on the law of gender, sexuality, religion and the family.
In short, this was to be a clash of legal titans.
I was asked to moderate the debate because I have spent my years since stepping down as a judge on the U. S. Court of Appeals for the D. C. Circuit writing about the need to carry on our public discourse, in the words of Abraham Lincoln, “with malice toward none, with charity for all.”
Gilbert made clear that the primary purpose of the debate was not to declare a winner and a loser, but instead to model how Americans must carry on our arguments with respect for one another. The Constitution will fail if we don’t.
I think Waggoner and Case pulled it off. With their prior approval, I posed to each the following directives. First, explain in the most generous terms possible — and to the approval of your opponent — the strongest part of her argument, but then tell us why in your view her argument still does not carry the day. Next, identify the weakest part of your argument, but then explain why in your view that weakness is not fatal.
Engaging in such an exercise is not only critical to making good arguments, but more importantly it shows us the limitations of our own views and opens us to the possibility that we might change our minds.
In a democracy we debate, not simply to prove a point, but to test an idea and to correct it if it is found wanting.
And that is what Waggoner and Case did.
They took on one of the thorniest issues of the day from the heart of the culture wars and treated each other with dignity.
They didn’t attack each other; they contended with each other’s ideas and only after working hard to understand those ideas. We didn’t poll the audience to see who won and who lost, although given the crowd, my guess is that most agreed with Waggoner. But declaring a winner and a loser wasn’t the point. The real point was that they modeled the only kind of public discourse capable of building what the Constitution calls “a more perfect union.”
They embodied Lincoln’s reminder that “we are not enemies but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection.”
Waggoner and Case may never agree on the best way for public schools to handle the controversy over gender identity of children, but they both agree that the other — with her vastly different viewpoints — is worthy of being heard simply because she is a human being.
Justice Antonin Scalia was a driving force in the creation of the Federalist Society and remains, in the minds of many, its patron saint.
He was a great debater. His dissents on the Supreme Court are legendary. Yet Justice Scalia was emphatic that in America, we attack ideas, not people. Which explains one reason why he could be such good friends with Justice Ruth Bader Ginsburg who saw the world and the Constitution much differently than he did.
Justice Scalia was fond of quoting a passage from a 1944 speech given by Learned Hand, one of the most distinguished judges in American history, given to a crowd of 1 million in Central Park: “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks go understand the minds of other men and women.”
For Scalia, this “spirit of liberty” was indispensable to the success of our democracy.
Learned Hand made the same point elsewhere when he quoted the plea of Oliver Cromwell, “I beseech ye, in the bowels of Christ, think that ye might be mistaken.”
Hand added, “I should like to have that written over the portals of every church, every school, and every courthouse, and every legislative body.”
Justice Amy Coney Barrett articulates a similar vision in her new book, “Listening to the Law,” which I highly recommend.
In addition to providing one of the finest descriptions of the role of a judge under the Constitution and disclosing fascinating details about the life of one of America’s most prominent jurists, the book sent Justice Barrett on a speaking tour.
During one interview with Bari Weiss, she was asked whether the nation is in the midst of a constitutional crisis — a frequent question these days and one worth considering. Justice Barrett answered that we are not, and the media, including Weiss, seized upon that answer as newsworthy, which it was.
But the coverage of the interview I read failed to heed the first rule of textual interpretation: keep reading! What Justice Barrett said next is in my view the money quote from the interview and a profound insight into what the Constitution requires of us. “(W)e need to learn to compromise and talk to one another and move forward past our disagreement to see one another as people and as fellow Americans and citizens. And that is the way to avert a constitutional crisis.”
Kudos to Kristen Waggoner, Mary Ann Case and Sheldon Gilbert of the Federalist Society for showing us how that is done.