Chancellor & Dean David Faigman's Message: Finding Common Ground for The Common Good

Dear UC Law SF Community,

Welcome, and welcome back, to UC Law San Francisco. I hope that you have had a safe, productive, and rewarding summer.

This is my tenth welcome message to the UC Law community since becoming dean in 2016. It seems that year-after-year I comment on the challenges of our current times and the promise of the times ahead. And this year is no different, though for many the former might appear somewhat darker and the latter somewhat dimmer at this moment. I am not impervious to these sentiments. Although it is hardly unprecedented to say it, we are living in unprecedented times.

But we have always lived in unprecedented times, though these might be somewhat more so than usual. In particular, both the right and the left increasingly speak in apocalyptic terms. We are, it seems, increasingly losing the center, the common ground, on which our nation stands.

Famously, in the notes of Dr. James McHenry, one of Maryland’s delegates to the Constitutional Convention of 1787, McHenry reported that “A lady asked Dr. [Benjamin] Franklin, Well Doctor, what have we got? A republic or a monarchy [?]. A republic replied the Doctor, if you can keep it.”

If you can keep it.

This admonition from the great Mr. Franklin was one meant for posterity. It was meant for us.

The Constitution did not itself yield a democratic Republic; it was rather a blueprint to permit successive generations of Americans the tools to create, and perpetuate, that form of society. Fundamental to this blueprint was a government of divided power, both separating power between the federal government and the states (“federalism”) and between coordinate branches of the federal government (“separation of powers”). Thus, in Madison’s famous words from The Federalist Papers No. 51, “Ambition must be made to counteract ambition.” He went on to explain, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

But in the very next line Madison stated, “A dependence on the people is, no doubt, the primary control on the government.” While “the people” were necessary, Madison did not contemplate that they would speak in one voice. Just as ambition would check ambition in a separated government, we the people would debate heartily the common good.

In a recent essay for “The Atlantic,” David Brooks quoted the political scientist, Ted Clayton, in a passage that resonated with me. Clayton was describing Alasdair MacIntyre’s diagnosis for what ails society today: “MacIntyre argues that today we live in a fragmented society made up of individuals who have no conception of the common good, no way to come together to pursue a common good, no way to persuade one another what the common good might be, and indeed most of us believe that the common good does not and cannot exist.”

It will not surprise you that I believe that the Constitution and the laws of the United States are at least one conception of the common good that does exist, and that we should be prepared to defend. I want to emphasize, however, that I do not mean this statement as in any way partisan. In fact, just the opposite is true.

UC Law San Francisco is an example of just this. We are a large law school, and the students, staff and faculty represent widely varying views on the issues of today, yesterday, and tomorrow. Our centers range from the Center for Gender and Refugee Studies to the Business Law Center. Our student groups include the Federalist Society and the National Lawyers Guild (NLG). We have over 100 affinity organizations on our campus. These groups, these collections of individual voices, represent the great diversity that makes our law school great. We have much to learn from one another and we should be intent on hearing views that differ from our own.

Diversity of viewpoint also makes our Nation great. But this does not mean that everything is on the table for debate. There are, and there must be, guardrails, either at law or in Franklin’s terms, in the need to preserve the Republic. For instance, lawyers cannot lie to judges, executive officers cannot ignore court orders, and the National Guard and police on the streets of the District of Columbia cannot do “whatever the hell they want.”

It is thus imperative that we can define the common ground that allows us to come together to pursue a common good.

Let me use the issue of gerrymandering to make my point, an issue very much in the news today. Gerrymandering is almost as old as the Republic itself. The term comes from Gov. Elbridge Gerry’s signing an 1812 bill that redrew Massachusetts state senate election districts to favor the Democratic-Republican Party. One of the districts was said to resemble a mythological salamander, with the wings of a dragon clutching at the district. The term “Gerry-mander” was born.

In Rucho v. Common Cause (2019), the Supreme Court held that partisan gerrymandering claims are nonjusticiable, thus taking them out of federal courts’ authority to resolve. Yet, in Alexander v. South Carolina (2024), the Court reaffirmed the principle that if race, rather than politics, is shown to be the predominant factor for drawing district lines, it runs afoul of the Equal Protection Clause. Discriminating against Democrats or Republicans is non-justiciable, but discriminating based on race is unconstitutional and subject to judicial enforcement.

The question whether hyper-gerrymandering for partisan purposes should be justiciable is a fair subject of debate. Personally, I think it is; but many people smarter than me would disagree.

However, saying that gerrymandering is non-justiciable does not mean that it doesn’t present an existential danger to the American Republic. We would do well to remember Abraham Lincoln’s warning that “A house divided against itself cannot stand.” The preservation of the Republic is not simply the responsibility of the courts or other organs of government—federal or state; instead, in Madison’s words, it hangs on the “dependence on the people.”

This is the common ground of which I speak. As a community, as a nation, we must endeavor to find foundational principles upon which we can agree, even if we might disagree on how best to actualize those principles in practice. I won’t attempt to set forth what those principles might be, for it would certainly exceed any reader’s patience. I think it is safe to say, however, that it includes preservation of the Republic and the guarantees of the Bill of Rights. What principles complete the common ground upon which the foundation for the common good is formed is a subject for the ages. It should be, and is, at the core of the education we provide at UC Law San Francisco.

It is to that task that I am, and I pray that all in our community are dedicated to in these, the best of times and the worst of times. Together, we can maximize the former and minimize the latter, for our Republic depends on it.

Wishing you all the best for the coming academic year in all your activities and endeavors. And to our alumni, I thank you for your ongoing support of our students and work to advance legal thought and the legal profession.

Warmly,

David

David L. Faigman
Chancellor & Dean
William B. Lockhart Professor of Law
John F. Digardi Distinguished Professor of Law
University of California College of the Law, San Francisco