The Buckeye Institute appreciates the immense honor of having former Federal Elections Commission chairman Bradley A. Smith chair our board of trustees.

Smith’s “Last Lecture: Why We Study Law” event in Columbus, Ohio, was co-sponsored by The Federalist Society.

Many of his present and former students, colleagues, and friends attended, alongside a sizable contingent of Buckeye staff.

Professor Smith is retiring from his illustrious career as Capital University School of Law’s Josiah H. Blackmore II/Shirley M. Nault Professor of Law after this semester, but continues in his significant work at Buckeye, his role as chairman at the Institute for Free Speech (IFS), and his scholarship and speaking in the broader First Amendment space as one of the country’s foremost and frequently-cited experts.

We are pleased to share his formal remarks with all of you who could not be there in person, and hope you enjoy reading the speech as much as we did hearing it live. Its lessons transcend various political climates and apply even to those who are not studying law as enduring principles for engaging in society.

Last Lecture: Why We Study Law
By Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law

Delivered at Capital University School of Law
Columbus, Ohio
April 10, 2025

One of my hardest tasks over the last 32 years of teaching has been preparing these remarks. In something billed as a “Last Lecture,” how does one be brief, without being trite on the one hand, or preachy on the other? But I will try.

Today, I would like to say a few words about why we study law, a little about our current political situation, a bit about my hopes for you, my students; and perhaps how these things fit together.

Let me begin by noting that to be an American is one of the greatest blessings one can have. Most nations of Europe, Asia, and Africa have origins lost in the haze of history, known to only through the dim glimpses we see in what the historian Barbara Tuchman called “a distant mirror.” By contrast, the origins of the United States are recent, and thus there for all to see—the good, the bad, the ugly. And our nation’s prominence in the world, and our ability to engage in self-criticism, causes many people to forget the full story. So, some people seem to think that we created slavery, rather than having played an instrumental role—probably second only to our British cousins—in ending it. Many people think our society is uniquely flawed and racist, when it is hard to name any country that has so successfully blended so many different peoples. Some people strangely think of the United States as a repressive, class-based society, when it has been among the most egalitarian that the world has ever known, certainly so for a nation operating on such a large scale. That this history has often been marked by injustice should not cause us to lose sight of the bigger picture: Never has a society approached the level of material prosperity we Americans enjoy today, and it is hard to name one that has ever been more free.

Another blessing of being an American is that this is a country governed by the rule of law. If you are like most law students I know— if you are like I was in law school—you have probably never thought much about why the core first-year courses are Property, Torts, and Contracts. You know they are important: that people have contract disputes, that people are injured through negligence, and so on. But why are these three courses the building blocks of legal education? Why are they required, and why do they come first, as opposed to Constitutional Law or Criminal Law, which often seem to dominate the popular discussion of legal issues and court decisions, or even a course such as Wills, Trusts, and Estates? (Because as we all know, the first thing new lawyers are usually asked to do is to write wills for their more senior family members). The answer is that property, torts, and contracts constitute the core of the rule of law.

Property rules define who has custody and control of real and personal property. They define our rights to bodily and reputational integrity. Absent clear and respected rules of property, society is a free-for-all of theft and violence. Nothing you have is yours if I have the force to take it. Nothing I have is mine if the mob descends, demanding I turn it over in the name of “social justice.” Such a world is not only incredibly violent, but it will usually be poor, too, because in such a world we cannot order our affairs with any certainty. In such a world, people have no incentive to save and invest, to create beautiful and valuable objects and works of art and literature, or to build businesses and other enterprises with value, since the fruits of such efforts may be taken from them at any time.

Tort rules enforce and complete the realm of property. Tort law delineates our duties to others, and—to the extent property law has not already done so—defines the scope of our property, including intangibles and our person and reputation, by what it prohibits. It provides for true justice—recompense to those whose property interests—again, including the interest in their own person and reputation—have been harmed by the actions of others. Criminal law is merely an extension of tort law. Together, property and tort are the foundation of a civilized society. They are the necessary foundation of economic prosperity, peaceful resolution of disputes, and ultimately, the rule of law.

Finally, freedom to contract allows us to work with our fellow citizens to rearrange our property and our rights and duties in ways that are mutually beneficial, thus increasing wealth and happiness. But this can only be done if we can be certain that our agreements will be enforced. And that is the role of the law of Contracts.

Together, the demands of these three fundamental areas of law comprise what John MacArthur Maguire, a professor at Harvard Law for 50 years, back when Harvard Law was a great institution that viewed its mission as creating lawyers rather than activists, called “those wise restraints that make men free.”

Professor Maguire’s definition packs three important concepts into just 7 words.

The first is that law is a system of restraints. Law informs us of our rights and duties, and the rights and duties of others to us. It thus restrains us from taking other people’s stuff; from the use of violence and fraud to get what we want or to satisfy our short-term impulses; and from reneging on the deals we have made. Law should not be turned around to facilitate these things—to legitimize taking other people’s stuff; to act on our baser impulses; or to renege, without good reason or consequence, on the deals we have made.

Next, and perhaps most importantly, the purpose of these restraints is to “make men free.” The purpose of law is not to bend people to our will, or to impose our choices on others, simply because we can. That is what law is intended to prevent--what proper law restrains us from doing. Thus, to use an egregious example from a few short years ago, it was an egregious abuse of law when the state demanded that the religious order Little Sisters of the Poor cover abortions through its employee insurance plan, contrary to its religious beliefs. The Sisters denied no one any rights; their decision inflicted no harm on anyone, nor left anyone worse off than before. This “law” was simply an exercise in brute force, to benefit some at the expense of others. Similarly, it is an abuse of law when the State attempts to force an artisan to use his talents to bake a cake or design a website for an event he believes is wrong, when myriad other options are available to the would-be customers. Such actions attempt to force people who have done no harm to use their labor, involuntarily, for the benefit to others—even when those services can be readily obtained elsewhere. That is legislation, but it is not the proper use of law, because it is not aimed at making men free. Rather, it is intended to make them part-time slaves, subservient to the will and desires of others. 

This is not to suggest that law is a doctrinaire libertarian project, as some might define that ideology. For example, a core element of property is the right to exclude others. But, to use just one example you will recall from your Property course, the Common Law long ago recognized that you cannot turn away from your dock the ship caught in a storm, sentencing its passengers to shipwreck or even possible drowning on the high seas. Quite different than baking a cake when a myriad of other bakers are available.

That is hardly the lone exception we make to general rules. For example, the passage of American civil rights laws in the 1950s and 1960s infringed on the traditional right of individuals to decide with whom to do business, and with whom to associate. But, in that instance, the law addressed a great evil that prohibited some from being free. That evil consisted of three parts, two of which were failures of lower levels of government. The first was bad law—local and state laws mandating segregation, and thus interfering with the freedom of those who would not have discriminated on the basis of race. Note that these “Jim Crow” laws—like the efforts to regulate the Little Sisters of the Poor or those bakers and web designers I’ve referenced—directly violated the fundamental principle that law is intended to make men free, not to force them to live by the standards of others. The second, closely related to the first, was the failure and even refusal of local and state officials to enforce the basic rules of tort and criminal law against physical violence directed at blacks and those who would engage with them—again, a state desertion of the very role it was established to play in a system of law. And the third was a level of private discrimination, violence, and hostility so widespread that it interfered with the ability of black Americans to live normal lives. This combination required the federal government to break the traditional protection of private rights of association—that is to say, rights of property and contract—with public accommodation laws. 

These examples of restraints on traditional freedom point to the third critical concept in Professor Maguire’s formulation: The restraints of law must be “wise.” Determining what is wise is hardly easy, and we will disagree at times. But the effort demands that lawmakers put aside passion, prejudice, vindictiveness, and petty desires. More than anything, perhaps, it demands that lawmakers restrain themselves.

The need to restrain lawmakers is, of course, exactly what the framers of the Constitution sought to address, in part, by structuring a government of limited and divided power, with incentives structured to pit “ambition against ambition.” Assuming that my audience is at least generally familiar these structures—most prominently bicameralism, federalism, enumerated powers, and a Bill of Rights—I will simply note that too often these days we look on the restraints of the Constitution as if they were bizarre, arbitrary obstacles to attaining our short-term desires, rather than a considered response to the long-term problems of governing a free people. But although the structures and incentives of the Constitution can help to restrain lawmakers, ultimately there must be self-restraint.

Today, many people feel threatened by what they imagine to be the unchecked power of the federal executive branch. But what goes around comes around. Is it unfair to note that many of those now feeling most threatened, and their ideological forebears, lacked restraint? That they have too often been in the van when it came to removing the shackles from the executive, and so creating the executive powers that they now decry? Is it too much to ask that those who were so supportive of a large state, with its myriad laws and regulations, and the delegation of sweeping power to the presidency, might now rethink the broader philosophies of law and government that they worked so hard to implement? If that rethinking does not take place, I think we must all be ready for worse to come.

Restraint must come not only in consideration of particular laws, but in the scope of lawmaking itself. Today, even when the government is in the best of hands—however one defines that—it seems that our laws are too often lacking in wisdom. One reason for this, I think, is that there is simply far too much law. How can we expect lawmakers to make “wise” law when the law reaches into every nook and cranny of our lives? Legislative bodies, from village councils to Congress, are simply overwhelmed by the task they have assumed—they lack the detailed knowledge to even begin to address intelligently all the tasks they have claimed for themselves, and the tasks they have assumed are so numerous that time for serious reflection and debate—necessities for “wise” lawmaking—are simply absent. In place of such reflection we now substitute emotive lawmaking—partisan takes that confirm pre-existing biases, with a focus on hot-button issues primed for emotion to trump reason. Instead of wise restraints maximizing the freedom of all, too often we demand that our lawmakers use legislation to impose our values on others, and to dictate the choices we think others should make. Unfortunately, there is little room for wisdom in legislative bodies that are busy regulating all things under the sun.

Even our judges, at the federal level appointed for life, and armed with a growing body of clerks, are increasingly asked to decide questions for which they are ill-equipped, at a pace that offers little time for reflection and, hence, for wisdom.

Meanwhile, the voters, endeavoring to live their varied lives and to enjoy the blessings and opportunities of freedom, have even less time to devote to the consideration of government—even as government dictates more and more of the most minute details of their lives, from light bulbs to showerheads to toilet paper. Accordingly, in the citizenry, too, passion, not wisdom, seems to rule the day.
Why is this? It is in large part because lawmakers—and frankly we, as voters—are unwilling to abide restraints on what should be within the purview of the law. It is because we look to the law not for the purpose of making men free, but to force others to act and to live as we think best, using force if necessary.

In response to this inability to deal rationally with such a broad government mandate, we push more and more decisions off to “experts”—so called—but while these experts may have more technical knowledge, they are often poorly positioned to create “wise” law. Siloed off in their individual bailiwicks, they lose the ability to consider the bigger picture, and even when they do, lack the power to make decisions that take that bigger picture into account. Thus, for example, during the recent pandemic, public health officials focused remorselessly on minimizing deaths from one cause—Covid—while ignoring the enormous costs—including but not limited to deaths from other causes—that their policies imposed on society. Most of you have probably seen the social-media memes based on the theme of: “You had one job . . . .” Those memes, of course, suggest that someone failed at that one job. But, too often, the real problem is the opposite—that person succeeded at that one job while ignoring other considerations in order to pursue a goal too narrow to do anyone much good.

If we are frustrated that government no longer seems to work, perhaps it is because government is overworked. Instead of a small number of wise restraints aimed at assuring our freedom, we get what Tocqueville called:

“A new kind of servitude which covers the surface of society with a network of complicated rules, through which the most original minds and the most energetic characters cannot penetrate. It does not tyrannise but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”

Even in our universities, we now have precious little time just to think. Throughout our nation’s universities one will find a rapidly growing, stupefying, and enervating bureaucracy. More and more of your faculty’s time is taken up with committee work, forms, rules—“metrics.” Just look at your course syllabi—what were once brief two or three-page documents outlining assignments and goals for the course now contain paragraph after paragraph of mandatory warnings and policies unrelated to the course, and spelled out in great detail—in case you missed those same  warnings, delivered by mandate in all of your other law school classes, orientation materials, and the school’s website. And make no mistake: The purpose of most of these policies is to remove professional discretion from the faculty.

Meanwhile, desperately-needed funds are diverted to hire more administrators rather than doctrinal faculty or legal writing instructors. Some of this enervating bureaucratic growth stems from proliferating government regulations—too much law. But some is self-inflicted—what we might call the law of private bureaucracy, our own little private world of unwise restraints that make us less free in our work and drain resources and discretion from more important tasks. For example, even at a small institution like Capital University Law School, so-called diversity, equity, and inclusion—“DEI”—programs suck up six figures per year that might otherwise go to scholarships, refurbishing student common areas, beefing up library reference assistance, or adding clinic or legal writing instructors, without any evidence of having created a more diverse, equitable, or inclusive campus. Why does this happen? The reason, I suggest, is that these rules are intended to force others to think like those with power do, or at least to mouth certain platitudes as if they agreed, and to gain power for those in control of the programs. Meanwhile, far too many professors and administrators seem to view their jobs not as imparting civilizational knowledge, not as creating lawyers, but instead as creating activists and leaders in the “fight” for social justice. But as the goal becomes the creation of “activists” and “leaders,” little time remains to think about the good, or about the great, transcendent issues—little time, that is, for wisdom; little time for what used to be considered the purpose of higher education; in law school, little time to discuss law and justice.

Compounding this problem, our universities, including their law schools, have steadily denuded themselves of right-of-center faculty, such that they are increasingly echo chambers in which neither students nor faculty are challenged by or even exposed to ideas from the right. People talk about the increasing polarization of our politics, the unwillingness to listen to contrary views. But even when the worst excesses of “cancel culture” are avoided—the shouting down of speakers, or violence and bullying against those voicing contrary opinions—what message does the faculty, intentionally or not, convey to students when at most a handful of token professors slant left? The message this sends to at least some students is that non-conforming views are not merely in error, but that they are not to be respected, perhaps not even tolerated, and possibly even dangerous to hear. In such an environment, is it any wonder that cancel culture, with its intolerance and bullying, spreads, and student discussion—at the core of learning—atrophies. What student dares take a chance on saying the wrong thing? And as a result, what learning opportunities are foregone? What knowledge is never learned? What skills necessary to compromise and group problem solving are never developed?

As partisanship and short-term gratification replace wisdom in lawmaking and in private bureaucracies, even in teaching in our universities, another problem emerges: the loss of integrity. As society becomes covered with laws far beyond the ability of the ordinary citizen or even the specialists to comprehend, abuse of the written rules becomes easier and easier.

Before entering office, presidents of the United States take an oath to “faithfully execute the Office.” Members of Congress and federal civil servants similarly swear to “faithfully discharge the duties of the office.” Federal judges vow to “faithfully and impartially discharge and perform all the duties incumbent on me. . . .” And around the country, most state and local officials take similar oaths to “faithfully” uphold the law.

But what does it mean to “faithfully” uphold the law? To faithfully uphold the law, I suggest, is to look to the spirit and intent of the law. The good citizen, I believe, will attempt to live not only by the letter of the law, but within the spirit of the law. Observe, however, that if he chooses the former course, to abide only by the narrowest reading of the letter of the law, he commits no crime. As I often note, accusing someone of violating “the spirit of the law” usually affirms that that person has complied with the law. Otherwise, we would simply say that the person has violated “the law.” The requirement that a person transgress the letter of the law before being subjected to punishment is a fundamental protection against arbitrary prosecutions. Such protection is particularly important as laws—especially vague, sweeping laws—grow in number and expand in scope.

For those in power, however, the opposite is true. Those in power must live not by the letter, but by the spirit of the law. If those who make and enforce the law come to see it as a game in which the technical words of a law are exploited to authorize an exercise of power that was not given, or if they apply the letter of the law selectively based on the identity or loyalties of the alleged lawbreaker, then the rule of law will break down. For those seeking to exercise government power, it is the precisely the spirit of the law, and not merely its letter, that must predominate.

To illustrate this point, consider a hypothetical similar to one given recently by Justice Amy Coney Barrett: Two parents go away for the week, leaving their children in the care of an aunt. Before leaving, they give the aunt a credit card and say “do something fun with the children.” The aunt proceeds to take the children on the next flight to Disney World, where they spend the week at the poshest resort hotel, and take advantage of massages, room service, and all of the extras Disney has to offer. The aunt has, in some respect, complied with the letter of the parents’ instructions, but clearly not with the spirit of the command. What are the results of this dereliction? Will the aunt be trusted again? Will other babysitters? Will future instructions grow more and more specific, abolishing sensible discretion that might otherwise be exercised? Will the effect be to increase or decrease freedom?

Increasingly, we see our lawmakers, and those charged with enforcing the law, similarly abuse the authority given to them. When this happens, it erodes public trust, and the possibility of an electoral win for the other side does begin to seem like doomsday. For if we cannot trust those in authority to execute the law faithfully, then who holds that authority is everything, and the idea that we can wait until the next election to change those in power, naïve. Everything is up for grabs. The constraints of the Constitution, of prior enacted statutes, and of course, of self-restraint, are gone. 

To take a current example, Congress passed the International Emergency Economic Powers Act in 1977. This law actually sought to reduce presidential discretion to set economic policy in times of emergency. Nonetheless, the law does grant the President authority to regulate commerce during a declared national emergency involving foreign threats. The law was intended to give the President authority to act quickly in response to address genuine crises such as foreign aggression or economic sabotage. It was clearly not to serve as a catch-all for the president to implement domestic policy preferences. Recently, however, the President has used it in exactly that way. By declaring an emergency and using the law to justify imposing tariffs on, to give just one example, Israel, an ally that poses no threat to the United States under any reasonable definition of the term, the President is not faithfully executing the powers given to him. Not everything the President thinks is good policy becomes a national “emergency” simply because going through Congress takes time, or because Congress may even reject the President’s priorities.

But those who cheered as our last president used the Higher Education Relief Opportunities for Students Act (the “HEROES Act”) to broadly forgive student loan debt, can hardly squeal about this abuse of emergency powers. Congress passed the HEROES Act in 2003 during the Afghanistan and Iraq wars, for the specific purpose of allowing the Secretary of Education to waive statutory or regulatory requirements related to federal student loans for active-duty military or National Guard officials; for persons residing or employed in a declared disaster area, such as the area around the Twin Towers; and for others who suffered direct economic hardship as a result of military operations. The thinking was that servicemen and others with immediate losses attributed to the attacks of September 11, 2001, or similar later events, should not be penalized if circumstances—primarily overseas deployment—caused them to miss loan payments. But, to address any similar but unforeseen circumstances, Congress added a catch-all— “other national emergencies.” To take a declared national emergency over Covid—an emergency with only the most tenuous relationship to the type of situation that motivated passage of the HEROES Act—and then to use this legislation to declare that student loan debt—something completely unrelated to Covid—creates a “direct economic hardship” resulting from this “national emergency;” and then to unilaterally redistributed $400 billion from society at large to college graduates—who statistics show, will enjoy higher than average incomes than the general populace—is simply not the “faithful execution” of the law. And when the Supreme Court blocked that effort as exceeding the president’s powers, that president found another legal fig leaf in another law, forgave more debt, and then bragged that “The Supreme Court blocked it, but that didn’t stop me.” This is not faithfully executing the law.

Another example came when the Supreme Court ruled that that same President’s eviction moratorium violated the law. Here again, a president employed a decades old statute in ways never intended to benefit a voting block and achieve a longstanding reordering of landlord/tenant rights that he and his party had been unable to achieve through the ordinary political process. Worse, when the Supreme Court made its ruling that the plan exceeded his authority, the President, just days later, and having admitted he had no authority to do so, simply reissued the emergency proclamation and reinstated the moratorium. He stated quite openly, that this would allow him to achieve some of his desired goals during “the time it gets litigated.” It goes without saying that this was not a faithful execution of the law. Similarly, when that president simply refused to enforce immigration laws, he violated his oath to faithfully execute the law. And when progressive prosecutors announce that they will refuse to prosecute whole categories of lawbreaking, they violate their oaths to faithfully enforce the law.

Note that I do not suggest that presidents or other officials have failed to faithfully enforce the law any time a court eventually rules against an action they have taken. Officeholders and courts will sometimes disagree in good faith on their scope of authority. Rather, these are among many recent examples of blatant attempts to use specific language, intentionally taken out of context and violating most every known rule of statutory interpretation, as a fig leaf for power grabs not anticipated by the law.

The list could go on and on—it is growing quite long. Who can forget another recent president asserting that absent congressional power he lacked the authority to take certain actions on immigration only to turn around and take those actions—policies that became known as the “Deferred Action for Childhood Arrivals” (“DACA”) and “Deferred Action for Parents of Americans” (“DAPA”)—through executive order? Or when that president justified numerous actions—on transgender rights, climate change, the economy, and cyber-security—not on the basis of some constitutionally-granted power, but with the upside-down constitutional claim that “if Congress won’t act, I will.” Faithful execution of the law would have had him saying, “because Congress won’t act, I cannot.” Those who have cheered such abuses, or cheered when that same` president asserted “I have a pen and a phone,” forfeited their legitimacy to criticize abuses of executive power. Yet, they cannot fathom why so many reject their counsel today.

We also see this failure in specific prosecutions. With so many laws blanketing our society, it has been noted that the typical American arguably commits 3 felony offenses each day—at least if prosecutors decide to target the person for prosecution, and are willing to stretch the law to do so. 

For example, many are alarmed now by what they perceive to be acts of pure vengeance by a president, stretching the law to use it against law firms and others who had sought to harm him or impede him in the past. And these declarations by the president are indeed troubling. But many of the same people who are now among the shrillest alarmists, including some on this faculty, were then amongst the most enthusiastic cheerleaders, as the law was stretched and tortured to pursue dubious criminal charges against that same president, and to seek to “disbar and discredit” lawyers whose only “crime” or malfeasance was to represent that president. And the fact that prosecutors abused their authority in this fashion and managed, with the help of a biased local judge, to a convince a jury of laymen to convict for these alleged crimes, only makes their dereliction of duty worse.

Such actions shatter our confidence in the law. As that confidence breaks down, people naturally view the law as a game in which every person tries to manipulate the rules for himself, with each manipulation justifying further abuses of power.

To the great shock of our intellectual elites, since January 6, 2021, polls have regularly shown that a plurality of Americans view the Democratic Party as a greater threat to democracy than the Republican Party. This was further borne out on election day 2024, when exit polling found that persons concerned about the future of democracy were more likely to vote for Donald Trump than for Kamala Harris. No one party, it turns out, has a monopoly on abuse of power. Until those on the political left comes to grips with their role—I would say their primacy—in creating the current state of affairs they now deplore, I am skeptical that much will change.

How are we to end this norm breaking, this lack of “faithful execution?” Unfortunately, I don’t have an easy “legal” solution. But I have already suggested one possibility: we simply need some serious rethinking of what it means to have “wise laws that make men free,” as opposed to a thick web of “complicated rules, through which the most original minds and the most energetic characters cannot penetrate”; rules that “compress, enervate, extinguish, and stupefy the people,” until we become little more than “industrious animals, of which government is the  shepherd.”

We also need to take seriously the command to faithfully uphold the law. And this change, this end to escalation, is going to have to come from you, the next generation of lawyers. You need to commit to law as a limited set of wise rules with the goal to make men free. If you are disturbed by what you see, you need to commit to the rule of law, as opposed to the rule of laws, and you need to apply these rules consistently, not just when your adversaries hold power.

That commitment will require something else tied closely to the faithful execution of the law: Intellectual integrity. When I was nominated, and eventually confirmed, to the Federal Election Commission in 2000, it was quite controversial, because I had a long paper trail arguing for radical changes to the law—changes aimed at lifting the web of regulation that was stupefying political campaigns. I was eventually confirmed by the Senate on a 64-35 vote, which in those days was considered quite extraordinary and controversial, but today would be called a “landslide.”

In the process, however, I was surprised by something I heard quite often: people admired the fact that I did not, in my confirmation hearings or rounds with the media, deny or run away from anything I had said. This surprised me, because, after all, it was all there in writing. I’m not sure if I had integrity, or was just too naïve to know that you could simply deny all you had said and done—that, for example, you could be like the President of NPR we saw testifying in Congress recently, disavowing any knowledge of her own past words and views even as Congressman Brandon Gill quoted her printed words back to her. In my case, for this basic act of continuing to say what I had long said, I became something of a hero. One organization even gave me what they called, after the line from the Declaration of Independence, their “Lives, Fortunes, and Sacred Honor Award,” recognizing persons in public life who had paid a price while standing on principle. Even at the time, I had to note that I never felt my life was threatened; when it came to “fortune,” moving to the FEC actually got me a pay raise from being a professor; and I just didn’t know that you not only could, but were expected to, so readily abandon your honor for something so trivial as a Washington, D.C., appointment.

At the risk of coming across as a self-righteous braggart, I can tell you from personal experience that demonstrations of intellectual integrity will be recognized. During a particularly controversial rulemaking at the FEC, the daily diary of Capitol Hill in Washington (Roll Call) ran an editorial on my work under the heading, “An Honest Man”—even though they disagreed with the substance of the position I had taken. On another occasion, during a very difficult time for me at the FEC, The Wall Street Journal editorialized that I was, “the only honest man in this bordello.” (When I got home that night, I proudly read that compliment to my wife, who immediately questioned how honorable I could be, given that I was apparently working in a bordello.)

And people will be watching when you least expect it. To give another personal example apart from intellectual integrity, when I announced my resignation from the FEC, I received a very nice note from a career staffer I knew only slightly. She related to me an incident I only dimly recalled, but said how it had made an impression on her. The FEC always had an annual Christmas party. Usually at these types of things, people quickly congregate in groups with the people they work with regularly, and that tends to mean people at their own level. So, the commissioners mainly talk to other commissioners or senior staff, senior staff with other senior staff and perhaps briefly with mid-management, and so forth. On this occasion, I entered with the party already well underway. There was a recently hired, and somewhat socially awkward, junior level employee, standing by himself in a corner. And it made a big impression on the staffer who wrote to me that, rather than joining fellow commissioners, or others at the peak of the Commission hierarchy, I went over and engaged that junior staffer in conversation and then introduced him to others in the room. It was interesting to me that that small act, and not the agency decisions I had made, the opinions I had written on enforcement matters, or my behavior at Commission meetings, was what she recalled. People will notice little things that you do, perhaps especially when you don’t think anyone is paying attention.

Finally, there are three things that add to and are themselves enhanced by integrity—courage, optimism, and gratitude. They go together. Integrity often demands courage. It is much easier to be bold and courageous when you are optimistic, and conversely it is also easier to be optimistic when you have courage. I think both traits are necessary to succeed, not only professionally, but in life. People who are optimistic will tend to be thankful for what they have, for the efforts of those who came before, and for the possibilities that stretch before them. Studies have consistently shown that a common attribute of high achievers is that they are thankful—that they begin each day with a sense of gratitude. I hope that you will share that attitude.

As I said at the outset, we live in a world of unprecedented freedom and abundance, and we should be thankful for that world, and for those who came before us and have made it possible. As a society, of course, we face problems that we should address—and address with courage and optimism. But those problems are nothing compared to the problems mankind has faced over the centuries. We do not live under the threat of famine. Even when natural disasters strike—as, for example, the recent fires in Southern California—you will find resources to assist you that a victim of, say, the great London fire of 1666 or the eruption of Krakatoa in 1883, could never have imagined. Be optimistic. You are not going to die in a fiery hell of climate change, no matter how much some “experts” have tried to persuade you otherwise for nearly 40 years—experts whose policy prescriptions for this threat just happen to line up with exactly what they hoped to see before anyone had ever heard of “climate change.” You are not doomed to a lower standard of living than your parents—in fact, almost certainly you will live longer and better. We see these memes now about how great life was in the 1950s and 1960s, because you could support a family on one income with great manufacturing jobs. Well, you know what? I worked a summer in a Ford stamping plant in the 1970s. People didn’t like those jobs. They were hard, dirty, and dangerous. Yes, a family could live on one income: in a 1300 square foot house, with no garage for the family’s one car that began rusting out after three years, got 14 miles to the gallon, and was completely lacking in safety and comfort features we take for granted on the most basic Kia model. That family never flew anywhere on vacation. Only about 10% of Americans were able to obtain college degrees. Yes, you can live like that today on one income. Or you can live like most Americans live, with almost infinitely greater comfort, safety, and possibilities.

Integrity, Courage, Optimism, and Gratitude.

As much as anything, I hope that you will have optimism and courage to take on tough cases, but also to marry, to have children, to buy a home, to start a law practice or business. I hope that you will thank those who came before for what they achieved to make our lives so much richer than that of the typical man or woman, anywhere in the world, in centuries past, rather than denigrate them for what they did not. I ask you to be grateful for all we have, even as we work to solve problems that still exist.

When you are admitted to the bar, you will, like the officeholders I discussed earlier, take an oath to “faithfully” discharge your duties. That duty is prescribed by the Ohio Supreme Court. As lawyers, you will have to decide, what are these duties? For example, an attorney has an obligation, whether in a criminal or civil matter, to represent the client, and that means to make the government or plaintiff prove its case in accordance with the rules. But does a lawyer fulfill his duty to the court, to the bar and to the rule of law, or to society at large, if he intentionally makes arguments that he knows to be untrue, either explicitly or, more often, by implication? When you counsel clients, do you tell them what they want to hear—especially if doing so holds out the possibility of compensation for you at a time when bills are hard to pay—or will you tell them what is truly, in your judgment, in their best interest? In society’s interest? In the realm of public policy, will you faithfully execute the law? Will you faithfully explain the law, in all its complexity, to the public? Or will you try to lead them by clever argument to the policy you favor?

I hope that you have come, or will come, to see that the law—the system of property, torts, and contracts that regulates our private affairs, accompanied by a constitutional framework for government—should be, and ultimately must be, a system of “wise restraints that make men free.” If you leave law school merely having learned how to manipulate the law on behalf of your clients; or if you see law primarily as a means to constrain your fellow citizens, as something to be exploited to try to force others to adhere to your vision of the good life, to make the choices you would make, rather than seeing the rule of law as valuable and good because it is a pre-condition of freedom and prosperity—then you may have a successful career in terms of plaudits and financial rewards, but you will not, I think, have reached the highest calling of being a lawyer.

I thank you, my present and former students, for the inspiration and joy you have given me over the past three decades. It has been my privilege to teach you, to learn with you, and to watch your careers unfold. I hope that you will go forward with courage, optimism, gratitude, and integrity, to faithfully uphold the law, and to play your part in maintaining those “wise restraints that make men free.”

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