You’ve Got to be Carefully Taught, Redux

brainThis is the title of a song from South Pacific, and seemed appropriate to a news story about the Heritage Foundation’s program for federal judicial clerks as we reported last week [Stealth Tactics to Control US Jurisprudence, VoxFairfax, November 19, 2018]. Although the organization initially rescinded the plan largely due to rather widespread critical reviews, it appears the idea was much too attractive to abandon altogether; now, Heritage has announced its resurrection, with a few modifications.

Initially, participants were required to maintain secrecy about the materials to be distributed and used, and to submit a statement concerning their views on originalism and textualism as part of the admissions process. Of most concern was a requirement that participants not use what they learned “for any purpose contrary to the mission or interest of the Heritage Foundation.” Secrecy and a loyalty pledge are not criteria for the training of judicial clerks. Now, applicants are required to submit a statement describing their jurisprudential philosophy. With a wink and a smile, Heritage says all are welcome to apply, not just those who have clerkships with Republican judges.

Two of the three faculty identified for the program are federal judges appointed by Republican presidents, while the third was a clerk to Clarence Thomas; all are generally known for their conservative judicial outlook. John Malcolm, a Heritage VP, was quoted as saying that the program would enable Heritage to forge valuable connections with lawyers who may be future stars. Yes, yes, a valuable opportunity to hobnob with the nation’s judicial elite.  A truly unselfish contribution to molding the minds of young attorneys.  Malcolm and Heritage were ardent supporters of Neil Gorsuch’s and Brett Kavanaugh’s SCOTUS candidacies.

Plans call for 20–30 participants selected by the Heritage Foundation and, it would appear on the basis of the prospects as described, that liberal-minded law school graduates who are headed for federal clerkships need not apply. They are not qualified to be carefully taught. For those who would apply, we suggest the following as topics for their jurisprudential philosophy:

  • Question the originalist and textual bases for Marbury v. Madison, as has been done by Matthew Whitaker, the acting Attorney General;
  • Reaffirm the Dred Scott decision as correct in finding that African-Americans as slaves could not claim United States citizenship;
  • Stand for states’ rights by arguing that “separate but equal” in Plessy v. Ferguson was, in fact, a mere distinction between blacks and whites and therefore constitutional;
  • Demolish the wishy-washy social science evidence used to terminate “separate but equal” in Brown v. Board of Education as typical liberal philosophy or political ideology;
  • Demonstrate the folly of Griswold v Connecticut creating a right of privacy, a word not mentioned in the Constitution, based upon “penumbras” of such protections emanating from the Constitution;
  • Crush Roe v. Wade and its lack of Constitutional language to support its conclusions.

Graduates of the Heritage training academy who advance any one of these critiques will demonstrate just how carefully taught they are.

As a reminder of what they must be carefully taught, let’s revisit the lyrics … from 1958:

You’ve got to be taught to hate and fear
You’ve got to be taught from year to year
It’s got to be drummed in your dear little ear
You’ve got to be carefully taught

You’ve got to be taught to be afraid
Of people whose eyes are oddly made
And people whose skin is a diff’rent shade
You’ve got to be carefully taught

You’ve got to be taught before it’s too late
Before you are six or seven or eight
To hate all the people your relatives hate
You’ve got to be carefully taught

60 years have passed. Has anything changed?

  

 



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