I’m saddened to have to comment on Professor Scott Gerber’s uncollegial and unbecoming conduct, but it’s come to the point where I can’t avoid making public comment on the matter.
In an article forthcoming in the Cleveland State Law Review, Prof. Gerber accuses me of somehow failing to provide him with credit he thinks he deserves for the term “liberal originalism” specifically, or perhaps the general idea that the Declaration of Independence should guide one’s interpretation of the Constitution. In a footnote, Prof. Gerber claims that my
citations to authority are sometimes misleading as to who coined the phrase ‘liberal originalism’ (I did). I brought my concern to [Sandefur’s] attention, he sort of apologized for it, and he has since apparently stopped citing my work altogether when discussing the Declaration of Independence in constitutional interpretation.
He then cites Conscience of The Constitution and complains that it “fail[s] to cite” his books To Secure These Rights or First Principles. He then concludes that “[f]ortunately for me, at least some other scholars realize that Sandefur’s work borrows heavily from mine.”
In fact, my work does not borrow heavily, or much of anything, from Prof. Gerber. I have believed that the Declaration should guide constitutional interpretation since I was in high school, and reached that belief, first from my own reading of the Founders, and, later, in reading the work of Harry Jaffa and his students. I have always been pretty thorough in acknowledging my intellectual debts, by the way; I have actually dedicated law review articles to Jaffa, John Eastman, Clint Bolick, and others whose influence on my thinking has been strong.
But what about citations? In law school, I discovered Gerber’s First Principles and borrowed the term “liberal originalism” from it, particularly in my 2004 article in the Harvard Journal of Law & Public Policy. That article (one of my first) was actually a review of a book Gerber edited, and I cited him quite generously—in fact, in the very first paragraph, I wrote that “in recent years, some writers, led particularly by Scott Douglas Gerber, have begun to devote serious consideration to the Declaration's constitutional role. These scholars are developing a theory of interpretation that Gerber calls ‘liberal originalism.’” By this time, however, I already believed in this interpretive approach for a long time, and employed the term solely for convenience.
Since then, I cited Gerber in four other articles, including a 2009 article where—again in the first paragraph—I said that Justice Thomas’s “jurisprudence is probably best described in Scott Douglas Gerber’s term, as ‘liberal originalism.’” I fail to see how this is “misleading as to who coined the phrase ‘liberal originalism,’” as Gerber claims.
This bizarre behavior began in response to that 2009 article, when Gerber wrote in the U. Detroit Mercy Law Review that I had been “misleading about who coined the phrase[] ‘liberal originalism.’” You read that right: he claimed that I had been “misleading” in an article in which I referred to “Scott Douglas Gerber’s term...‘liberal originalism.’”
This first accusation came after Gerber wrote me some offensive emails in which he claimed I had somehow misappropriated “his” term. I don’t recall my exact words at that time (and it is, I think, especially wrong for him to characterize the content of a private exchange of correspondence without quoting it; if it is “on file” with him, I would ask that he print the contents of it). But as I recall, I did not “apologize.” I had no obligation to. I instead politely informed him that I have probably cited his work more than any other single writer has, and had given him all the “credit” to which he was entitled. This did not satisfy him, but I let the matter drop, and ignored his innuendo in the Detroit Mercy article—embarrassed for his sake at his behavior. It was unfortunate since, as he notes, I arranged to have him visit with PLF staff and to speak to the U.C. Davis Federalist Society some years ago. I admire his work—although I cannot truthfully say that it persuaded me of views I did not already hold—and had thought, apparently wrongly, that we were friends as well colleagues.
But now, for the second time, he has all but accused me of plagiarism, not only contrary to facts that any person can casually confirm, but contrary to what I had thought was generosity on my part in helping publicize his work. I think it is obviously a charge without foundation in fact or reason.
Even more remarkably, while Prof. Gerber complains that Conscience “fails to cite” two of his books, it actually does cite another of his books, Declaration of Independence: Origins And Impact, the book I reviewed in the Harvard Journal of Law & Public Policy ten years ago. How much credit, exactly, does Prof. Gerber want? On the other hand, I never use the term “liberal originalism” in Conscience at all. In fact, I have largely dropped that term, since I am no longer sure that I qualify as an “originalist” of any sort.
I am sorry to be driven to commenting on Prof. Gerber’s bizarre and paranoid behavior; but as his innuendo has now become an outright accusation of (some vaguely described form of) impropriety, I find myself compelled to respond. Prof. Gerber is a fine writer, and I enjoyed his books. That’s why I’ve cited him probably more than anyone else has, and why his behavior is not merely petty and petulant, but also odd and distressing. Whatever its cause, his claim that I have somehow behaved wrongly is baseless and demeaning to himself.
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