American History and the Federal Courts:

A Conversation with William Watkins

Interview Conducted and Transcribed by Maclain Conlin[1]

American History and the Federal Courts.pdf

Download PDF • 142KB

(All views expressed in this article are those of the author and do not necessarily represent the position of the Clemson Law Review or its leadership.)

Maclain Conlin: Thank you, sir. To begin with, many of our readers here at the Clemson Law Review are students who are considering whether or not they should pursue a career in the law. On this point, when did you decide to pursue a legal career and why did you choose to do so? What about the law appealed to you?

William Watkins: Well, I never would have guessed that I would have spent my career in prosecution. However, you can be taken in different directions. I tell a lot of folks, “Don’t go into law school thinking you have to plan out, oh, I want to be a corporate lawyer or a criminal lawyer or whatever. Fate will take a hand and pull you in various directions.” I always excelled in school and courses with writing and reading. Probably some of my favorite classes when I was at Clemson were in the History Department. The legal history courses I took just fascinated me, and I did well, and I would say that that was probably the entry point.

MC: Throughout your published writings, you’ve addressed a wide variety of topics, from patent litigation to the Anti-Federalist Papers. When did you begin to acquire this familiarity with the Founding era and American legal history?

WW: I acquired this knowledge in a variety of ways. I have always been interested in history, and in my legal history classes at Clemson, reading about these Founding-era debates and seeing how the interpretation of the Constitution changed over time in favor of greater federal power, and the arguments for and against that change, really pushed me in this direction.

MC: Is it unique for a practicing attorney to take on a deep interest in legal history?

WW: I would say it’s definitely unique, perhaps because about 95% of law school is really like a trade school as if you were going to a vocational school. Broader intellectual ideas are only a small part of that education, and most people focus primarily on learning the practice of law itself so that they can earn a living. I’m more interested in the ideas than the practice in many ways.

MM: If a law school wanted to try to include a greater emphasis on legal theory, what do you think that course might look like today based on your knowledge of American legal history, and what do you think would be valuable for a law student to know about the fundamental ideas that you mentioned?

WW: One of the best courses I took in law school was from Professor Bill Quirk, who has passed now. Professor Quirk wrote a number of books and was a tax attorney. He taught tax law, but he was sort of like me. He was more interested in big ideas, rather than solely these practical aspects. And I took a class that he offered. It was called, “The Constitution.” And you didn’t read cases in that class. If you take constitutional law, typically in law school, you’re mainly reading Supreme Court opinions there. You learn about the Court's exegesis of the Constitution rather than its original text or Founding-era documents.

Professor Quirk's class, by contrast, was original sources and documents, such as the Federalist and Anti-Federalist papers. He would pick, say, a letter from Jefferson to Madison and Madison’s response. He would use a number of things like that to try to make you really think and to understand the ideas behind the Constitution. We didn't read any cases in that class. I think I would model a class on different subjects about legal education. For that course, I would focus less on particular cases and more on excerpts from Emer de Vattel and Sir William Blackstone.

I was very fortunate to have the chance to take Professor Quirk’s class on the Constitution. It was a great class.

MC: Are you able to put your knowledge of history and the American legal tradition into practice as a lawyer or is it more of a background principle that animates what you do overall?

WW: No, it’s more of a background principle, because many of the statutes I deal with on a daily basis can be difficult to square with constitutional history. For example, the Commerce Clause is a general police power now for the Federal Government. And most of our federal criminal code is based on the commerce power. If you look at the Constitution, Congress can criminalize counterfeiting, piracy, crimes involving the law, nations, and a couple of others. But that’s it. Article I, Section 8 only covers a few distinct matters. And yet the federal criminal code seems to treat the Commerce Clause as a general grant of police power.

MC: Many young students are passionate about advancing the Constitution’s original meaning. Do you have any advice regarding how these students can have the greatest impact?

WW: I think if that is one’s goal, you should aspire to either be a law professor or a college professor. Teaching political science or law in a way that looks to the Constitution’s history is very important because students are not going to get it anywhere else. There’s also public interest litigators such as the Individual Rights Foundation, but I think if you're teaching young people, that is most important.

MC: On the point of educating both young people and the general public, I’d like to take just a brief moment to talk about some of your writings. First, I’d like to just take a moment to discuss an article that you wrote in The Hill last year regarding the role of the judiciary. You related this back to the Anti-Federalist Papers and some of the recent conversations that have been had regarding the role of a judge. How, in your view, did the Founders’ view of judicial independence differ, if at all, from the modern view of traditional independence?

WW: I think we first have to start out with understanding the importance of judicial independence to the British as well as the British colonists, which all the Founders were raised upon. In that system, judges were seen as executive branch officials. The question of judges serving for good behavior arose because you didn't want the King to be able to fire the judge if he didn't like the judge’s decision. And there are plenty of instances in English legal history, where James the first, for example, now James Stuart, tells his judges, “Hey, if you get a case dealing with the King's prerogative, don’t issue an opinion till you come talk with me or my Privy Council.” He believes kings were the fountain of justice, and the judges were the servants of the King, appointed by the King. It doesn’t take a rocket scientist to see how this approach would greatly expand royal power. So in the English system, the standard of good behavior, which was adopted in the early 1700s, was a big deal. Americans were brought up under that, and one of the claims in the Declaration was that judges have good behavior in England, but we don't have good behavior for our judges here.

Popular sovereignty is the key tenet of American political philosophy. But we still are kind of rooted in the British system. This can be difficult. Originally, judges could not strike down legislation as unconstitutional because Parliament was omnipotent according to the Glorious Revolution. And yet, realizing the principles of popular sovereignty, the Founders quickly accepted that governors, legislators, and judges are all agents of the people. The people have established fundamental law through the Constitution, therefore each branch has a duty of the people to interpret that law—including the judiciary—and protect it. Thus, you see this rise of judicial review, which has since expanded into a kind of judicial supremacy. All judicial review establishes is that the judiciary is a co-equal branch of government and therefore can interpret the Constitution, just like the executive and the legislative branch—which sounds simple, but it was a big deal at the time of the Founding.

MC: How should modern American courts look to the English judiciary when they evaluate the power of our court system?

WW: I think you should be on your guard there. I think it’s similar to executive power. There are some scholars, such as John Yoo at Berkeley, who argue that essentially the President, by Article II vesting him with executive power, essentially has the prerogative power of the British monarch from the 1780s. I think that's a terrible argument insofar as we rejected monarchy, and this is a republic. I think a similar point applies to English courts. You have to be careful in realizing the origin of their independence under the monarchy, and how it’s different in a republic.

MC: You've recently authored a new book entitled The Independent Guide to the Constitution. Why did you feel the need to write this book, and what broader purpose do you hope that it serves?

WW: My main purpose is to help the American people understand how the Federalists and the ratification debates represented how the Constitution would function. What were their representations in selling this product to the people? Everyone should go back and look at the original debates. I think that’s simple. I want to go back to basics. Non–lawyers can understand this. It’s just like if I was going to sell you land, and I said, “Maclain, this is a great piece of land. It's got multiple fruit orchards on it, a lake, etc.” You take possession without seeing it, and there’s one apple tree. And there’s a mud hole. If that happened, I think you would have a good argument that that’s not what I represented, and you could either undo the contract or require me to bring the land up to meet those representations. The same sort of principle applies here. Non–lawyers can understand if, when Madison says the Constitution only reaches a few and defined powers, this is in tension with the modern reading of the Commerce Clause, where the Federal Government can touch almost everything. My book is sort of a back to basics of what the Founding generation meant, how we interpret that, and I try to do it in a manner that, again, a Joe six–pack can understand.

MC: Do you see your work as a compliment to The Heritage Guide to the Constitution?

WW: That’s a great book. I don’t have the new edition. I have the old edition on my shelf and I think it’s a great reference guide, but I think it’s more written for lawyers and Federalist Society folk, whereas I think that Joe Public can get more out of my book. My book is written with one voice, and it is not meant to be a full explanation on each provision, but to equip them with a basic understanding. I try to make this more for the average student or citizen.

MC: Do you have any advice regarding key works on the Founding that you would recommend to undergraduate students hoping to learn more about our Constitution? We will list your book at the conclusion of this interview so they can take a look at it, but I was wondering if there are any other resources that you would recommend for students.^[2]

WW: There are. You have Bernard Bailyn’s Ideological Origins of the American Revolution and Gordon Wood’s The Creation of the American Republic. These are two of the great standards. Professor Thompson of Clemson’s Lyceum Program has written a work entitled America’s Revolutionary Mind. It is a big book in that area with sort of a reinterpretation based on Lockean thought. I think we all agree that Locke was important to the Founders, but he puts much more emphasis on Locke than Bailyn or Wood. Those three books would be good starting points.

MC: Thank you very much for joining us, Mr. Watkins!

WW: Thank you for inviting me.

[1] All errors are my own.

^[2] Mr. Watkins’ book can be purchased on Amazon at the following link: The Independent Guide to the Constitution: Original Intentions, Modern Inventions: Watkins Jr., William J.: 9781598134223: Amazon.com: Books.