As an Alum of Georgetown Law, I am glad Dean Treanor pushed back forcefully to this gross overstep by the government.
That said, Georgetown Law has been quite uniquely (as an administration/faculty, not a student body) horrible on freedom of expression. It would be wonderful for them to reembrace any values around diversity of thought that has been so lacking.
Thank you, David! It is especially necessary and proper at this time to again illuminate and emphasize the first words of our Constitution. We are now plagued with actions of federal (purported) public servants attacking people for exercising the rights and freedoms secured by the First Amendment. Their open and notorious attacks evidence a huge collective blind spot in our view of our Constitution.
For about a year, federal judges have been attacking students and universities for exercising their freedom of speech and press and freedom of association (in clear and flagrant violation of the First Amendment). Now, the president and U.S. Department of Justice attorneys are attacking students, universities, judges, individual attorneys, entire law firms, and many federal employees for the same reasons. Our purported public servants are making a sham and a shambles of our Constitution.
If SCOTUS ever even considers the first words of our Constitution, it almost always is to essentially (and clearly erroneously) dismiss them as a mere “preamble.” SCOTUS justices very seldom have acknowledged that the so-called Preamble has profound fundamental substantive significance. But that has been changing.
Every current SCOTUS justice (with the possible exception of Justice Kavanaugh) and many recent past justices authored or joined in opinions (majority, plurality, concurring or dissenting) emphasizing the profound principle underlying our entire Constitution, which was evidenced most strikingly by the first words of our Constitution--the sovereignty of the people. SCOTUS justices’ occasional honorable mentions of the first words of our Constitution are important but egregiously inadequate.
Coincidentally, in 2026 we will celebrate the 250th anniversary of our Declaration of Independence and its crucial second paragraph (one people declaring our independence from all tyranny and abuses of power by people in power).1 But right now, America needs a national dialogue that truly does as Chief Justice Marshall admonished speaking for a unanimous SCOTUS in 1819 in McCulloch v. Maryland: “we must never forget, that it is a constitution we are expounding.”
We have, collectively, too often forgotten that our Constitution is the written elaboration of how one people formed one nation. We have forgotten that our Constitution is a written elaboration on and establishment of the legal and political principles and precautions stated in our Declaration of Independence. We have forgotten how We the People established and asserted our sovereignty (generally, the personal sovereignty of each person over himself or herself, and also the political sovereignty of the people collectively over all public servants).
In McCulloch, Chief Justice Marshall speaking for a unanimous SCOTUS also elaborated on the most important principles of “the people” that made us a nation:
“The government of the Union” is “emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and [exclusively] for their benefit. This [national] government is acknowledged by all to be one of enumerated [limited] powers. [ I]t can exercise only the powers granted to it . . . . . That principle is now universally admitted.”
As Justice Alito (joined by Justices Scalia and Thomas) put it in a dissenting opinion in Obergefell v. Hodges in 2015: “In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.”
The vital words that the Founders and Framers chose to introduce our Constitution were designed to introduce the American sovereign. Justice James Wilson (the Founder and Framer who is perhaps most responsible for the fact that our Constitution begins with the words “We the People”) explained the profound significance of what many public servants (including many SCOTUS justices for hundreds of years) routinely dismissed as a mere "preamble."
Justice Wilson in 1793 in Chisholm v. Georgia emphasized that the first and foremost separation of powers in our Constitution is between the sovereign people and our public servants: “ ‘The PEOPLE of the United States’ are the first personages introduced” by our Constitution. “To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. . . . [T]hose, who ordained and established that Constitution" rightfully could "have announced themselves ‘SOVEREIGN’ people of the United States."
The first words of our Constitution introduce American sovereigns and emphasize that “We the People” did “ordain and establish” our “Constitution” and our “Union” to “establish Justice” and “secure the Blessings of Liberty to ourselves.” Thinking about the sequence of introducing personages, a clear pattern emerges. Even the structure of Articles I, II and III emphasize the sovereignty and supremacy of the people. Our Constitution introduced, first, the People, second, our directly-elected representatives (Congress), third, our indirectly-elected representative (the president), and, last, the unelected judges of SCOTUS and lower courts.
Article VI emphasized that our “Constitution” and federal “Laws” that were “made in Pursuance thereof” (by our representatives who may be held accountable to us in elections) and “Treaties” are “the supreme Law of the Land; and the Judges in every State” (all judges throughout our nation) are “bound thereby.” It also emphasized that the first, foremost and constant duty (and loyalty) of all legislators and “all executive and judicial Officers, both of the United States and of the several States” is “to support this Constitution.”
The words of every article in the Constitution further emphasized the sovereignty and supremacy of the people over our public servants. In Article I, the sovereign people emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). In Section 1 of Articles I, II and III, the sovereign people “vested in” (delegated only limited powers to) our public servants in “Congress,” in and under the office of the “President,” and on the “one supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish.”
The Ninth Amendment expressly emphasized a principle that was implicit in the original Constitution: all “rights” are “retained by the people” regardless of whether any right (ever) is included in any “enumeration in the Constitution.” The Tenth Amendment did the same. It expressly re-emphasized that We the People “by the Constitution” merely “delegated to the United States” certain limited “powers” and “prohibited by it [our Constitution] to the States” certain “powers” (e.g., in Article I, Section 10 and Amendments XIII, XIV, XV, XIX, XXIV and XXVI) and we “reserved to the States” certain powers and “reserved” to “the people” all residual “powers.”
All the foregoing established and confirmed (repeatedly) that We the People clearly did not vest any power in any federal public servant to abridge any right or freedom in the First Amendment. Many times, the Founders and Framers emphasized that our Constitution vested no such power.
In emphasizing that our original Constitution established that We the People did not even need to reserve any right that is now secured by our Bill of Rights, Alexander Hamilton in The Federalist No. 84 asked: “why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
The First Amendment emphasizes rights and powers that the people necessarily exercised to create, empower and restrain state, as well as federal, governments. So the First Amendment emphasizes rights and powers that the people necessarily retained when We the People created our nation, e.g., freedom of thought, expression, association and assembly. No public servant was delegated in the U.S. Constitution or could possess under any state constitution any power to injure any of us for exercising our First Amendment rights or freedoms.
We the People need to be more clear and more emphatic in reminding our public servants of their proper place (as Article III emphasizes) “under this Constitution” and “the Laws of the United States.”
It’s all so odd to me. The reversal against DEI over reach happened naturally and organically. Basically, when the far left got silly and thought they could be openly anti-Semitic after Hamas’ surprise attack on Israel. I also think people’s eyes have been opened to the flaws inherit within some of the elite schools and their hold on the pole position when it comes to hiring preferences has weakened significantly - particularly in this world where all the hard parts of the LSAT that could even arguably or possibly distinguish test takers were eliminated. Evolution was already occurring organically. There’s no need for this kind of silliness.
Christ: It makes a lot of people want to defend the institutions that they were so recently riled up about and, themselves, using their influence to attack. (Albeit in a less draconian way.)
Can US Attorneys decide not to hire from a law school that has a curriculum they think isn't consistent with their approach to practicing law? Think of the pre-George Mason law school that GMU took over - where the theory of law was that the legal systems of a country reflect its religious tradition. Some skepticism about the graduate of such a law school's legal training seems appropriate to me. So I think employers, including public employers, can say they think a particular school doesn't meet their criteria for adequate training, without violating the 1st A. I'm not sure that Martin's letter cross the line here but maybe he did. However, Georgetown set itself up for being targeted by not standing up for the 1st A in the Shapiro affair. I think the Trump administration has been pretty strategic in its targets thus far (I doubt USAID was the first agency to get DOGEd by accident - foreign aid is unpopular with the public). Georgetown Law looks like a pretty good target to me, given its past behavior. In a public fight about this, Georgetown isn't really a good advocate for 1st A rights.
Personally, I'd find Dean Treanor a lot more convincing if he had written a letter saying something like "My institution fell short of living up to these values in our dealing with Prof. Shapiro, so I know full well how political pressure can sometimes cause us to fall short in standing up for 1st A values. I'd urge you to learn from Georgetown's mistakes and join us in reaffirming commitment to the Bill of Rights' values." But it is pretty hard to work up a lot of sympathy for the privileged when they experience the sort of behavior they engaged in themselves. Which is a good reason for them to try harder to set examples, rather than wait until they are themselves targeted.
As to the hypothetical you pose, about government officials sending such letters to religiously affiliated universities - I'm willing to bet the US Attorney's office in DC (or in most places) wouldn't look at a Regent grad, and that they'd claim it was because the academic standards aren't high enough at lower ranked institutions. Having met excellent lawyers who were Regent grads, that sounds like a cover story to me.
So, perhaps it would be a mere bonus that they excluded pro-life students from fellowships, hiring, etc., but I doubt they'd have seen that as illegitimate. (There's plenty of "progressives are smart and conservatives are dumb, that's why there aren't more conservative professors" stuff floating around, and any student who focused on the "wrong" positions on social issues would likely be excluded for just not being smart enough). And we certainly saw lots of schools and other employers having more or less categorical bans on former Trump administration officials after 2020.
Indeed, I feel it would be a safe bet that no US Attorney's office under the Biden or Obama administration considered seriously applications from law students active in pro-life (or 2nd A, etc.) activities in law school, no matter how stellar their GPA or how highly ranked their law school. All Martin seems to have done is be more explicit about ideological alignment and paint with a bit broader brush. I'd love to be wrong about the past records - perhaps your readers can document lots of hiring of students who were active in pro-life, pro-2nd A, etc. causes in school or went to schools like Regent getting jobs under D administration USAOs. But I suspect there aren't going to be many such examples. Perhaps Martin being open about his views of what's appropriate in legal education is an important line that shouldn't be crossed, but I think Georgetown and Dean Treanor are exceptionally poor spokespeople for the 1st A until they come to terms with their own issues with free speech.
One recurring issue with the Trump administration is that they "say the quiet part out loud," i.e., they announce what they're doing when they go after protected speech. And under the case law, if you articulate an unconstitutional motive for an otherwise defensible action, that's a problem.
So an administration can do all sorts of other things and not get in trouble, as long as they aren't explicit about what they're doing. A Democratic administration can avoid hiring from religiously affiliated law schools—as long as they don't tell the world what they're doing.
It makes me think of Batson challenges in the context of jury selection. You can't use peremptory strikes against jurors because of their race—so if you told the judge you were doing that, the judge would stop you. But you can rely on race-neutral factors when striking jurors, and plenty of lawyers do this in ways that result in keeping jurors of a particular race off the jury. It's wrong—but trial lawyers will tell you that it happens all the time.
I've heard the argument that at least the Trump administration is honest and upfront about why it does what it does. And I suppose that's true, as far as it goes.
As an Alum of Georgetown Law, I am glad Dean Treanor pushed back forcefully to this gross overstep by the government.
That said, Georgetown Law has been quite uniquely (as an administration/faculty, not a student body) horrible on freedom of expression. It would be wonderful for them to reembrace any values around diversity of thought that has been so lacking.
Thank you, David! It is especially necessary and proper at this time to again illuminate and emphasize the first words of our Constitution. We are now plagued with actions of federal (purported) public servants attacking people for exercising the rights and freedoms secured by the First Amendment. Their open and notorious attacks evidence a huge collective blind spot in our view of our Constitution.
For about a year, federal judges have been attacking students and universities for exercising their freedom of speech and press and freedom of association (in clear and flagrant violation of the First Amendment). Now, the president and U.S. Department of Justice attorneys are attacking students, universities, judges, individual attorneys, entire law firms, and many federal employees for the same reasons. Our purported public servants are making a sham and a shambles of our Constitution.
If SCOTUS ever even considers the first words of our Constitution, it almost always is to essentially (and clearly erroneously) dismiss them as a mere “preamble.” SCOTUS justices very seldom have acknowledged that the so-called Preamble has profound fundamental substantive significance. But that has been changing.
Every current SCOTUS justice (with the possible exception of Justice Kavanaugh) and many recent past justices authored or joined in opinions (majority, plurality, concurring or dissenting) emphasizing the profound principle underlying our entire Constitution, which was evidenced most strikingly by the first words of our Constitution--the sovereignty of the people. SCOTUS justices’ occasional honorable mentions of the first words of our Constitution are important but egregiously inadequate.
Coincidentally, in 2026 we will celebrate the 250th anniversary of our Declaration of Independence and its crucial second paragraph (one people declaring our independence from all tyranny and abuses of power by people in power).1 But right now, America needs a national dialogue that truly does as Chief Justice Marshall admonished speaking for a unanimous SCOTUS in 1819 in McCulloch v. Maryland: “we must never forget, that it is a constitution we are expounding.”
We have, collectively, too often forgotten that our Constitution is the written elaboration of how one people formed one nation. We have forgotten that our Constitution is a written elaboration on and establishment of the legal and political principles and precautions stated in our Declaration of Independence. We have forgotten how We the People established and asserted our sovereignty (generally, the personal sovereignty of each person over himself or herself, and also the political sovereignty of the people collectively over all public servants).
In McCulloch, Chief Justice Marshall speaking for a unanimous SCOTUS also elaborated on the most important principles of “the people” that made us a nation:
“The government of the Union” is “emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and [exclusively] for their benefit. This [national] government is acknowledged by all to be one of enumerated [limited] powers. [ I]t can exercise only the powers granted to it . . . . . That principle is now universally admitted.”
As Justice Alito (joined by Justices Scalia and Thomas) put it in a dissenting opinion in Obergefell v. Hodges in 2015: “In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.”
The vital words that the Founders and Framers chose to introduce our Constitution were designed to introduce the American sovereign. Justice James Wilson (the Founder and Framer who is perhaps most responsible for the fact that our Constitution begins with the words “We the People”) explained the profound significance of what many public servants (including many SCOTUS justices for hundreds of years) routinely dismissed as a mere "preamble."
Justice Wilson in 1793 in Chisholm v. Georgia emphasized that the first and foremost separation of powers in our Constitution is between the sovereign people and our public servants: “ ‘The PEOPLE of the United States’ are the first personages introduced” by our Constitution. “To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. . . . [T]hose, who ordained and established that Constitution" rightfully could "have announced themselves ‘SOVEREIGN’ people of the United States."
The first words of our Constitution introduce American sovereigns and emphasize that “We the People” did “ordain and establish” our “Constitution” and our “Union” to “establish Justice” and “secure the Blessings of Liberty to ourselves.” Thinking about the sequence of introducing personages, a clear pattern emerges. Even the structure of Articles I, II and III emphasize the sovereignty and supremacy of the people. Our Constitution introduced, first, the People, second, our directly-elected representatives (Congress), third, our indirectly-elected representative (the president), and, last, the unelected judges of SCOTUS and lower courts.
Article VI emphasized that our “Constitution” and federal “Laws” that were “made in Pursuance thereof” (by our representatives who may be held accountable to us in elections) and “Treaties” are “the supreme Law of the Land; and the Judges in every State” (all judges throughout our nation) are “bound thereby.” It also emphasized that the first, foremost and constant duty (and loyalty) of all legislators and “all executive and judicial Officers, both of the United States and of the several States” is “to support this Constitution.”
The words of every article in the Constitution further emphasized the sovereignty and supremacy of the people over our public servants. In Article I, the sovereign people emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). In Section 1 of Articles I, II and III, the sovereign people “vested in” (delegated only limited powers to) our public servants in “Congress,” in and under the office of the “President,” and on the “one supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish.”
The Ninth Amendment expressly emphasized a principle that was implicit in the original Constitution: all “rights” are “retained by the people” regardless of whether any right (ever) is included in any “enumeration in the Constitution.” The Tenth Amendment did the same. It expressly re-emphasized that We the People “by the Constitution” merely “delegated to the United States” certain limited “powers” and “prohibited by it [our Constitution] to the States” certain “powers” (e.g., in Article I, Section 10 and Amendments XIII, XIV, XV, XIX, XXIV and XXVI) and we “reserved to the States” certain powers and “reserved” to “the people” all residual “powers.”
All the foregoing established and confirmed (repeatedly) that We the People clearly did not vest any power in any federal public servant to abridge any right or freedom in the First Amendment. Many times, the Founders and Framers emphasized that our Constitution vested no such power.
In emphasizing that our original Constitution established that We the People did not even need to reserve any right that is now secured by our Bill of Rights, Alexander Hamilton in The Federalist No. 84 asked: “why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
The First Amendment emphasizes rights and powers that the people necessarily exercised to create, empower and restrain state, as well as federal, governments. So the First Amendment emphasizes rights and powers that the people necessarily retained when We the People created our nation, e.g., freedom of thought, expression, association and assembly. No public servant was delegated in the U.S. Constitution or could possess under any state constitution any power to injure any of us for exercising our First Amendment rights or freedoms.
We the People need to be more clear and more emphatic in reminding our public servants of their proper place (as Article III emphasizes) “under this Constitution” and “the Laws of the United States.”
It’s all so odd to me. The reversal against DEI over reach happened naturally and organically. Basically, when the far left got silly and thought they could be openly anti-Semitic after Hamas’ surprise attack on Israel. I also think people’s eyes have been opened to the flaws inherit within some of the elite schools and their hold on the pole position when it comes to hiring preferences has weakened significantly - particularly in this world where all the hard parts of the LSAT that could even arguably or possibly distinguish test takers were eliminated. Evolution was already occurring organically. There’s no need for this kind of silliness.
Christ: It makes a lot of people want to defend the institutions that they were so recently riled up about and, themselves, using their influence to attack. (Albeit in a less draconian way.)
Can US Attorneys decide not to hire from a law school that has a curriculum they think isn't consistent with their approach to practicing law? Think of the pre-George Mason law school that GMU took over - where the theory of law was that the legal systems of a country reflect its religious tradition. Some skepticism about the graduate of such a law school's legal training seems appropriate to me. So I think employers, including public employers, can say they think a particular school doesn't meet their criteria for adequate training, without violating the 1st A. I'm not sure that Martin's letter cross the line here but maybe he did. However, Georgetown set itself up for being targeted by not standing up for the 1st A in the Shapiro affair. I think the Trump administration has been pretty strategic in its targets thus far (I doubt USAID was the first agency to get DOGEd by accident - foreign aid is unpopular with the public). Georgetown Law looks like a pretty good target to me, given its past behavior. In a public fight about this, Georgetown isn't really a good advocate for 1st A rights.
Personally, I'd find Dean Treanor a lot more convincing if he had written a letter saying something like "My institution fell short of living up to these values in our dealing with Prof. Shapiro, so I know full well how political pressure can sometimes cause us to fall short in standing up for 1st A values. I'd urge you to learn from Georgetown's mistakes and join us in reaffirming commitment to the Bill of Rights' values." But it is pretty hard to work up a lot of sympathy for the privileged when they experience the sort of behavior they engaged in themselves. Which is a good reason for them to try harder to set examples, rather than wait until they are themselves targeted.
As to the hypothetical you pose, about government officials sending such letters to religiously affiliated universities - I'm willing to bet the US Attorney's office in DC (or in most places) wouldn't look at a Regent grad, and that they'd claim it was because the academic standards aren't high enough at lower ranked institutions. Having met excellent lawyers who were Regent grads, that sounds like a cover story to me.
So, perhaps it would be a mere bonus that they excluded pro-life students from fellowships, hiring, etc., but I doubt they'd have seen that as illegitimate. (There's plenty of "progressives are smart and conservatives are dumb, that's why there aren't more conservative professors" stuff floating around, and any student who focused on the "wrong" positions on social issues would likely be excluded for just not being smart enough). And we certainly saw lots of schools and other employers having more or less categorical bans on former Trump administration officials after 2020.
Indeed, I feel it would be a safe bet that no US Attorney's office under the Biden or Obama administration considered seriously applications from law students active in pro-life (or 2nd A, etc.) activities in law school, no matter how stellar their GPA or how highly ranked their law school. All Martin seems to have done is be more explicit about ideological alignment and paint with a bit broader brush. I'd love to be wrong about the past records - perhaps your readers can document lots of hiring of students who were active in pro-life, pro-2nd A, etc. causes in school or went to schools like Regent getting jobs under D administration USAOs. But I suspect there aren't going to be many such examples. Perhaps Martin being open about his views of what's appropriate in legal education is an important line that shouldn't be crossed, but I think Georgetown and Dean Treanor are exceptionally poor spokespeople for the 1st A until they come to terms with their own issues with free speech.
One recurring issue with the Trump administration is that they "say the quiet part out loud," i.e., they announce what they're doing when they go after protected speech. And under the case law, if you articulate an unconstitutional motive for an otherwise defensible action, that's a problem.
So an administration can do all sorts of other things and not get in trouble, as long as they aren't explicit about what they're doing. A Democratic administration can avoid hiring from religiously affiliated law schools—as long as they don't tell the world what they're doing.
It makes me think of Batson challenges in the context of jury selection. You can't use peremptory strikes against jurors because of their race—so if you told the judge you were doing that, the judge would stop you. But you can rely on race-neutral factors when striking jurors, and plenty of lawyers do this in ways that result in keeping jurors of a particular race off the jury. It's wrong—but trial lawyers will tell you that it happens all the time.
I've heard the argument that at least the Trump administration is honest and upfront about why it does what it does. And I suppose that's true, as far as it goes.