Civilization is a fragile inheritance, built painstakingly over the course of generations but capable of being shattered in an instant. The Anglo-American common law is a similar bequest. This source of legal wisdom developed in Burkean fashion, treating similar cases similarly and slowly developing rules for right conduct. Justice Oliver Wendell Holmes, Jr. was right when he described the common law as "embod[ying] the story of a nation's development through many centuries." The magisterial heritage of the common law is woven into the very fabric of these United States.
Against this profoundly conservative tradition, however, is a legal progressivism that--to borrow a phrase from Evelyn Waugh--appears "ready to abandon the work of centuries for sentimental qualms." The dispute between these two competing visions has raged for almost a century. But the most recent election delivered a firm rebuff to that Jacobin faction of legal progressivism. Though that camp remains ascendant in the academy, new judicial appointments will ensconce textualism and revive originalism in the judiciary. Worthy of particular celebration is the nomination and confirmation of our former editor, Neil M. Gorsuch, as an Associate Justice of the United States Supreme Court. It appears to be the dawn of new opportunity for those who cherish the rule of law.
It is at this moment of cautious optimism that I present the first Issue of Volume 41 of the Harvard Journal of Law & Public Policy. This Issue contains ten essays drawn from the ThirtySixth Annual Federalist Society National Student Symposium on Law and Public Policy, which focused on the First Amendment in contemporary society. The eminent scholars selected for this Issue address religious liberty, campaign finance and free speech, privacy and freedom of the press, universities and the First Amendment, and the ABA's model anti-discrimination rule. Of particular note is Professor Richard Epstein's insightful analysis of the common law in relation to the First Amendment, adapted from his Keynote Address at the Symposium.
The Articles selected for this Issue...