Interview With Law Student and Contributing Writer Mark Kogan


Note: We asked law student and Contributing Writer Mark Kogan about his constitutional philosophy, his feelings about the Tea Party, and his decision to go straight to law school after college.

PolicyMic (PM): From a government ban on the consumption of Four Loko to a the defense of the Defense of Marriage Act, you seem to have made a case in many of your PolicyMic articles for a more limited role for federal government. Talk a bit about your philosophy on federal vs. state government, individual liberties, and the role of the government in the free marketplace.

Mark Kogan (MK): My views on liberty and government can be succinctly summarized by the following quote from John Stuart Mill, author of “On Liberty,” one of the primary texts influencing our Founding Fathers:

“The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental or spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.”

I really can’t put it more eloquently than that. The entire idea behind our constitutionally-limited government is that, when given a choice between whether to have a state-mandated course of action or allowing the individual to decide their own actions, it is rare that the state-mandated option should come out on top.

However, this doesn’t mean that I believe this view should be taken to unreasonable extremes. There are costs to living in a modern society, and one of those costs is sharing the burden of living in a society that is based on rules and laws. That said, I don’t believe our government does enough to defer to individual liberty when considering legislation or policy. I definitely feel that government, both state and federal, is more than willing to trample over rights in the name of convenience. They get away with it, too, because the critical mass of people necessary to stand up and fight government overreach on a societal scale is rarely, if ever, going to be reached.

Governing a handful of individuals by yourself is difficult. Governing over 300 million people from a centralized location is impossible. The entire idea of our federal system was to get as close to the reality of self-governance as possible. Our continued centralization of federal power is the exact opposite of that goal.

The purpose of the federal government is to ensure that our rights are protected and that our safety is reasonably provided for (along with a handful of other, specifically enumerated, powers). Beyond that, government should be as localized as possible. Sure, some things have to be done at a federal level to ensure proper enforcement and equal treatment (such as the Civil Rights Act and the Voting Rights Act), but, I certainly feel that too much is done at the federal level, in violation of constitutional principles, for the sake of convenience and perceived efficiency.

PM: With this in mind, what is your take on the Citizens United ruling? Should the government be able to ban political spending by corporations in candidate elections?

MK: This is a tough question because Citizens United is an unbelievably complicated case. There are probably three people in the country who understand the decision in its entirety and I certainly don’t claim to be one of them. With that in mind, I think some things need to be clarified before diving into a discussion on Citizens United.

Individuals often have a viscerally negative reaction to Citizens United because of their disagreement with the underlying principle that, in the context of political campaign expenditures, “money equals speech.” However, that rule of law was established way back in 1976 and was not up for discussion in Citizens United, something many people tend to confuse.

Therefore, if we look at Citizens United as a decision that had to follow the “money equals speech” rule, I think it becomes very difficult to argue that it was wrongly decided. The question that the Court chose to address was whether or not the government could limit political speech based on its nature and proximity to an election. The First Amendment was meant to prevent just that kind of government censorship. Majority author Justice Kennedy wrote clearly that “if the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech,” and I think that notion is spot on.

At the end of the day, I also believe that individuals have a fundamental misconception of the effect of money on politics. Corporations, unions, or individuals can literally spend hundreds of millions of dollars on me individually, but when I step into that voting booth the final choice is still my own. Money buys access to speak to a larger audience at greater decibels – it does not buy votes, just ask Meg Whitman.

The knee-jerk reaction of attempting to limit the political speech of an entity that has the resources to speak more effectively is adverse to the purpose and protections of the First Amendment. The answer to bad speech is more speech, not less.

PM: The Tea Party commonly talks about the need for America to return to its constitutional roots. Indeed, the name of the movement, itself, draws inspiration from the revolutionary period. As a law school student and scholar of the constitution, tell us: Is the Tea Party’s vision of government and governance in line with that of the founding fathers? In what ways does the Tea Party fit in with, or diverge from, the founders’ constitutional vision?

MK: Someday, I hope to be qualified to answer a question like this. Until then, I’ll have to offer simple opinion and conjecture based on my personal experience with constitutional study.

Before discussing whether the Tea Party’s constitutional vision is in line with the Founding Fathers, I feel we have to clarify which Tea Party we’re talking about. Are we looking at the Tea Party that arose around Ron Paul’s 2008 candidacy, that protested the Bush administration’s extensive war powers and bank bailouts, or are we focusing on the Tea Party that came into power on a wave of voter anger in the 2010 elections?

In reality, I don’t think the former Tea Party exists anymore. In my opinion, the Tea Party that we see has long since been co-opted by the Republican elite. Sure, there is still some disagreement and strife within the party, but by and large the Tea Party comes down entirely within the Republican platform.

With that in mind, it is hard, if not impossible, to argue that the modern Tea Party is in line with the Founders’ constitutional vision. I am a firm believer that any political party that focuses on legislating social morality at a federal level is de facto at odds with the vision of our Founders. You just can’t argue for limited government while simultaneously arguing that the government should be allowed to regulate what occurs in a bedroom – it is completely inconsistent and hypocritical. The only way to do that at the federal level is by constitutional amendment, something the Tea Party elect hasn’t really discussed.

On questions of fiscal policy and the size of government, the Tea Party is more in line with the Founders’ constitutional vision, at least in their rhetoric. Scaling back entitlement spending and the regulatory nature of the federal state sounds nice, but is politically dangerous. Only time will tell if they do more than pay lip service to the constitutional limitations on the federal government. Talking about reducing the national debt and scaling back the federal government is one thing, doing it is quite another.

At the end of the day, I think social conservatism will hamstring any party claiming to rely on the Constitution, because the idea of legislating morality at a federal level without a constitutional amendment does not mesh with our notion of limited government. The tone of the Tea Party comes across as far more focused on partisan positioning than constitutional adherence. That has to change if they hope to distinguish themselves as the party of limited government, something their Republican forbearers have failed to do.

PM: Which Supreme Court Justice do you admire most and why? Which Justice would you want to have a PolicyMic debate with?

MK: I have a great deal of respect for Chief Justice John Roberts. Of all the Justices, his writing always stands out to me due to his clear and artful use of language. In a sea of jurisprudence where many Judges wax poetic about their thoughts and feelings, drawing complicated or even frivolous analogies, the clarity of Chief Justice Roberts’ work always strikes me as what judicial opinions should look like. Generally, I agree with his judicial philosophy, particularly on areas of federalism and deference (or specifically, non-deference) to Congress. His approach comes across, at least to me, in a very consistent and well-articulated manner. Where some Justices stretch to justify what I would call “ends-oriented” jurisprudence, Chief Justice Roberts’ reasoning is almost always strong, logical, and consistent.

As for which Justice I would like to debate with, that honor would have to go to Justice Scalia. While I may disagree with him often, I hold his intellect in very high regard. I would love to push the Justice on what I perceive to be his inconsistency in certain areas of the law, such as what I consider a subjective and selective defense of constitutionally-guaranteed rights – especially economic rights and his reading of the 14th Amendment’s “Privileges and Immunities Clause.”

PM: Talk about the decision to go straight to law school after graduating from Stanford. What advice would you offer current college seniors faced with the same decision? What have you found most challenging as a law student?

MK: It was a decision I knew I was going to make before I really started at Stanford, so by the time the deadline rolled around to commit to graduate school, I checked the box without thinking. In retrospect, my feelings are split.

On the one hand, I always knew I wanted to go to law school and I felt, and still feel, that getting the degree and getting on with the rest of my life as quickly as possible made the most sense. On the other hand, going straight through is tough – there are a lot of experiences that I am missing out on by having been in school without pause since age five. I definitely feel a little burnt out on academia and I think a year or two off could have helped rejuvenate my interest in school.

I would definitely suggest taking time off between undergraduate and graduate school to go live a little, gain some experience, and make sure that graduate school is what you want to do. I knew that law school was the path for me and even I have had a tough time continuing the grind. If you’re still not sure, take your time – this isn’t a cheap commitment, mentally or financially.

The most challenging part of being a law student is the none-too-friendly paradigm shift that you undergo in your first year; somewhere between learning procedure, tort law, and legal writing, your whole worldview changes. While this is exactly what most people (myself included) go to law school for, the process can be hard. Professors don’t hold your hand and they expect you to learn much of the practical to-dos on your own – this can be tough if you, like me, had never been exposed to legal writing or the legal thought process.

PM: In the battle between East and West, which coast in your mind reigns supreme and why?

MK: Having now experienced both, I still have to give the honors to the west coast. While New York and D.C. are amazing cities, at the end of the day the weather and natural beauty back West win me over. My time at Stanford committed me more fully than ever to west coast love. Being within hours of snowy mountains, nature preserves and parks, and beautiful beaches is just hard to beat. Couple that with sunshine year round and a laid back attitude and you just can’t help but be happy.

Many east coast natives I’ve met respond to that characterization by telling me that “Here, we get all four seasons,” like experiencing weather is the real crowning achievement of living on the east coast. My response has always been that “72 and sunny” is the only season I’ll ever need.

While I may miss the suit-wearing hustle and bustle of finance in New York or politics in D.C., I think retiring to a cabin on a beach somewhere on the west coast is the only answer for me.

Photo Credit: Mark Kogan