Regarded as one of the country’s premier constitutional law scholars, Professor H. Jefferson Powell will return to Duke Law in May 2012. He currently serves as a deputy assistant attorney general in the U.S. Department of Justice and teaches at the George Washington University Law School. The Chronicle’s Annie Wang interviewed Professor Powell to learn more about this constitutional scholar.
The Chronicle: To begin with, welcome back to Duke! How and why did you decide to return?
H. Jefferson Powell: Duke is a great place. I loved my association with it for many years before coming up to Washington, and I’m delighted to renew my ties. It was not a hard decision in that respect at all.
TC: Once you return to Duke, what will you be doing?
HJP: I will be on the law faculty again, both teaching and doing research.
TC: To my knowledge, constitutional law is a specialized field. How did you become interested and involved?
HJP: Constitutional law is only one of the many areas of law that seem interesting to me. Over the years, I have also taught contract law, which is very different. I suppose the thing that particularly drew me to constitutional law, and still draws me to it, is the way in which, in a very direct fashion, constitutional law is about public service. All of law is about public service and pursuing the public good in some general sense. But this aspect of law is very clear in respect to constitutional law because it is the law that governs the government and the public sphere.
TC: You co-wrote a book No Law: Intellectual Property in the Image of An Absolute First Amendment (Stanford University Press, 2009) that has been hailed as a “thorough rethinking” of the First Amendment. From your expertise as a constitutional law scholar, do you think the First Amendment sanctions hateful protests at military funerals?
HJP: I have not thought a lot about this issue besides as a citizen reading about what the Supreme Court did in the military funeral case, Snyder v. Phelps. You ask a very difficult question because answering it involves the very important American public norm that the government cannot interfere with free expression, except in very narrow circumstances and for very powerful reasons. When the family in Snyder sued, they asked the government, in the form of the courts, to interfere with free expression by sanctioning it. So Snyder involved that very powerful and distinctive American commitment to the broadest possible free expression, which is something David Lange and I talked about in our book, and another Duke Law professor George Christie has discussed wonderfully about in his Philosopher Kings?: The Adjudication of Conflicting Human Rights and Social Values. The First Amendment commitment to free expression is central to our society and our form of government. At the same time, however, the military funeral case also implicated a very powerful countervailing consideration, which is the proper desire that people have to protect their privacy. Justice Brandeis said long ago that the Constitution protects the right civilized people cherish to be left alone. When people engage in expression such as a protest at a funeral, they intrude into the very heart and life of individuals and families, which is a matter of powerful legal concern as well. In the Supreme Court case, dissenting Justice Alito made a powerful argument that our interest in protecting the Snyder family’s right to be left alone should overcome our powerful commitment to free expression under the circumstances, but the rest of the Court did not agree. This case shows one reason why constitutional law is so fascinating. Resolving constitutional issues forces you to try to think in a disciplined way about how to reconcile these kinds of important legal values, such as free expression versus privacy.
TC: On a lighter note, what has been your favorite job or position so far? Why?
HJP: My favorite jobs are the one I’m currently holding (Justice Department lawyer) and the one I used to have and am going back to (law professor at Duke). Oh yes, and I also worked as a lawyer for the North Carolina attorney general. That was great too.
TC: What has been the most rewarding aspect of working in academia and in the public sector?
HJP: I love teaching. The effort to try to understand an area of law and to work with other people so that they understand it as well, and to encourage students to develop the professional and intellectual tools to be great lawyers is a challenge and something that is very exciting to me. To work in public service is also wonderful. It is an opportunity to serve the common good. These are both jobs that give you an opportunity to do worthwhile things, and that’s all you can ask for from a job.
TC: Have you ever thought of working in private practice?
HJP: I thought about it. When I was in law school, I had summer jobs at firms and I have done a certain amount of consulting work for private firms. Private practice is a great setting in which to be a lawyer.It is just not the particular part of the profession that has engaged my imagination and excitement.
TC: What advice would you give to a potential law student?
HJP: I am a romantic about the law. The law is one of the activities that separate a decent and civilized society from chaos and inhumanity. To be a lawyer, regardless of whether you end up in the private sector or in government or in teaching, is to have an opportunity to share in the task of making society decent and civilized. That is as exciting as any profession could possibly be. There are a lot of ways to do worthwhile work, but this is one of them. I would say to people thinking about law school, think to yourself if anything you know about the law sounds exciting and grasps your imagination. Law is hard. You work very hard. What makes it worth doing and makes it truly rewarding is if your imagination and energy are excited by it. Look inside yourself and ask yourself if something about the law catches fire for you.