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01/26/2020

Federalist Society Anti-Federalist Conference
Michael Ramsey

Yesterday I attended this outstanding conference organized by the Federalist Society on (appropriately) the Anti-Federalists.  This was the program:

Panel 1: The Anti-Federalists at the Founding 

9:30 AM - 11:00 AM

This panel will focus on the historical backdrop of the Founding. We all know about the Federalist Papers. Many have read Max Farrand’s The Records of the Federal Convention of 1787 or portions of it. But fewer have read the Anti-Federalists’ critiques. This panel will introduce the who, what, when, where, and why of the Anti-Federalists. This panel will also discuss the role of the Bill of Rights in addressing the concerns of the Anti-Federalists and introduce the foundations of the debate on the importance of federalism.

Panelists:

  • Hon. John Bush, United States Court of Appeals, Sixth Circuit (Moderator)
  • Prof. Jud Campbell, Associate Professor of Law, Richmond School of Law
  • Dr. Michelle Kundmueller, Assistant Professor of Political Science, Old Dominion University
  • Dr. Roger Pilon, B. Kenneth Simon Chair, Constitutional Studies, Cato Institute
  • Prof. Michael Rappaport, Hugh and Hazel Darling Foundation Professor of Law; Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law

Panel 2: The Anti-Federalists and Theories of Originalism 
11:15 AM - 12:30 PM

This panel will discuss Anti-Federalist thought and its relevance to theories of originalism. Do the Federalist Papers matter to originalism? If yes, what about the Anti-Federalists? If no, should we also ignore the Anti-Federalists? This panel will focus on scholarly research and academia. 

Panelists: 

  • Hon. Amul Thapar, United States Court of Appeals, Sixth Circuit (Moderator)
  • Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University and Visiting Professor, Georgetown Center for the Constitution
  • Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law
  • Prof. Christopher R. Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law

Lunch & Keynote Address
12:30 PM - 2:00 PM

  • Hon. Andrew S. Oldham, United States Court of Appeals, Fifth Circuit

Panel 3: The Anti-Federalists and the Court 
2:15 PM - 3:30 PM

The third and final panel will focus on the Anti-Federalists today and their relevance to originalist litigation. Last term, the Anti-Federalists played a major role in the outcome of Franchise Tax Board v. Hyatt. Is that a one-off or a sign of more to come? Beyond simply citing the papers as a plea to authority, should courts confronting questions of originalism read the materials underlying Anti-Federalist thought as a way to understand the Constitution? 

Panelists: 

  • Hon. Michael Brennan, United States Court of Appeals, Seventh Circuit (Moderator)
  • Scott Keller, Partner, Baker Botts & Former Solicitor General of Texas
  • Erin Murphy, Partner, Kirkland & Ellis LLP
  • Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

The consensus was that more attention should be, and probably will be, paid to anti-federalist writing in originalist scholarship and advocacy -- at minimum because federalist writing in the ratification debates (and The Federalist in particular) was often a response to the anti-federalists.