Mark S. Weiner

From Salzburg to Louisville and Back Again

In Constitutional law, Corporations, Europe, Rule of the Clan on May 9, 2015 at 11:08 am

Greetings from Austria, where I’m spending the semester as a Fulbright scholar at the law school of the University of Salzburg. My wife and I have had a grand time getting to know this beautiful city and the mountains and valleys of the nearby Salzkammergut. If you’d like to find us, we’re living in a little baroque garret right about here:

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Just behind that blue dot, up a sheer cliff, is the house where the author Stefan Zweig used to live, so we’ve been thinking a lot about The World Before Yesterday—and, in an American spirit, about the director Wes Anderson, too. Across the river is the Salzburg old town, with its winding cobblestone streets, and our favorite bakery, and our favorite butcher, with its staff who wave to us warmly on the street when they see us walk by.

We arrived in the country in late January after about a month on the road. We began in northern Iceland, where we visited the friends we had made during my first Fulbright in 2009. As always, Icelandic hospitality was exceptional, and we were moved by how warmly we were welcomed into people’s homes:

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Yes, the lamb is as good as you imagine. Then again, getting around was sometimes a bit of challenge:

Fortunately, we survived. Here I am later in Reykjavík with my friend Hrannar, a lawyer and legal scholar. We’re visiting the grave of Icelandic independence leader Jón Sigur∂sson, a historian and editor of medieval Icelandic texts who also was a friend of the great German legal historian Konrad Maurer. I had become interested in Sigur∂sson’s work back in 2009 when preparing a talk and article about Icelandic legal memory.

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After many stimulating conversations about the failure of Iceland’s recent constitutional reform process—a failure of politics with much blame to go around—we bade farewell and hopped a plane to Germany. There we spent three weeks studying the language, reading Die Zeit, singing pirate songs with the children of a professor of public law, and catching a few really bad colds. We also met some new friends. One of them was kind enough to share this picture from the library of the George C. Marshall European Center for Security Studies.

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Hey there, brother! Liebe Grüße!

We rolled into Vienna just in time for a robust, informative orientation by the Austrian-American Educational Commission.

Now Stephanie and I are savoring all the pleasures Austria has to offer, and I’ve been teaching two classes, including an introduction to U.S. constitutional law. I always enjoy teaching that subject to Europeans because it never fails to confound expectations—both the students and mine.

Almost all of my students would consider themselves to be politically toward left of center, at least in American terms. Yet they tend to gravitate toward legal positions that in the United States would be read as deeply conservative. That’s especially true when it comes to methods of constitutional interpretation, about which they are thoroughgoing originalists.

Indeed, when they learn in detail about the interpretive views of American judicial liberals—whom in my experience most Europeans reflexively regard as “good” in moral as much as legal terms—they find them to be in basic conflict with their ideal of the rule of law.

Here I am in our favorite local haunt, the Cafe Bazar, my second office, grading papers, eating bear’s garlic soup, and puzzling over this curious fact:

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This intellectual switcheroo takes place regarding many substantive issues as well, especially federalism. I saw that recently on a visit to Naples, to the University of Naples Federico II, again courtesy of the Fulbright program.

The invitation was made possible through the initiative of Liliana Mosca, a professor of African history who contacted me many years ago about the life of an American slave I wrote about in my first book. She and I had been corresponding for years, but we had never met. An hour after touching down, I was sharing a long lunch and an endless cup of wine with her family.

Over the next couple of days—in between my wistful gazes at Vesuvius and what some misguided people might have mistakenly called “too many” slices of Neapolitan pizza—I had the chance to speak with the students of professor Elisabetta de Franciscis. Never before I had encountered a group of European students more passionate and knowledgeable about American constitutional law. I couldn’t believe it when one of the students quoted Cooley v. Board of Wardens to me as I stood at the classroom podium (I hadn’t read Cooley in years).

What’s more, all of the students strongly supported the principle that federal courts should play an active, assertive role in maintaining the balance of federalism. As young Italians contemplating their own country’s constitutional reform process, the ideals that spoke to them were those of American constitutional conservatives. Likewise, when I lectured last week to my Austrian students about the Revolution of 1937, many of them viewed that transformation with profound skepticism. They thought the liberal judiciary had abdicated its responsibilities regarding the basic structure of government.

I’m not a constitutional conservative. I hold with political rather than judicial safeguards of federalism. But I’ve appreciated this chance to reflect on my own constitutional tradition.

My visit to Italy followed directly on the heels of a whirlwind trip to Louisiville, Kentucky—a beautiful town with a funky southern vibe and a hospitality every bit as warm as you’ll find in Salzburg. It’s true that we were officially in town for the Grawemeyer Awards ceremony at the University of Louisville (to celebrate a book I began writing when we were in Iceland on that first Fulbright), but after our twenty-hour flight, the first thing we did was dash to a minor league baseball game:

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After all, who needs Mozart when the home team wins?

The second thing we did was to make a pilgrimage. We visited the remains of a man whose legal thought has long been at the center of how I think about the world:

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Justice Brandeis was one of the leading judicial lights of the New Deal, and his thought embodies many of the principles that my European students often reject. Visiting his remains was as much a cultural re-immersion as attending that Louisville Bats game.

As for the ceremony, of course it was one of the highlights of my life:

Image Credit: Tom Fougerousse/University of Louisville

That’s the theologian Rev. Willie James Jennings on the left, and the scholars of education Andy Hargreaves and Michael Fullan, and the psychologist James McGaugh. Here I am saying a few words about the award:

If you wonder why I’m blinking so slowly, bear in mind that the time-space continuum was not working in my favor.

While visiting Louisville, I also had the pleasure to speak with some outstanding students in an advanced class on international politics—and to learn that this year the university can boast eight young scholars who won Fulbright awards. Eight. They’ll be going to Morocco, Turkey, Kazakhstan, Dubai, England, Spain, Thailand, and Bulgaria. How great is that?

Now we’re back in Salzburg, and the ground no longer seems to be shifting under our feet. And that means it’s time for me to start making the film I promised to create as part of my Fulbright award.

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The film is about Austrian conceptions of law and landscape, and it’s called “Wood, Water, Stone, Sky, Milk.” I’m trying to think about Austrian national identity by considering how Austrian law regulates the natural world. I’m curious about how the search for “security” that Stefan Zweig discusses in The World Before Yesterday echoes down the corridors of Austrian legal history. I’m also interested in using the landscape as a metaphor for key features of Austrian law and politics.

One of the things I’ve enjoyed most about making the film so far is how much it’s brought me into contact with so many different Austrian thinkers.

A professor of political science in Salzburg—he shed light on the history of Austrian political and economic liberalization. A young scholar of constitutionalism passionate about cross-cultural conversation—we spoke for a solid five hours about Austrian water law at the Cafe Bazar. Another young scholar who has just returned from working on the national constitutional court—we conducted an interview about an interpretive method known as “en-stoning” or “fossilization” in a forest between two large stones. A legal historian in Innsbruck, another in Graz. A senior scholar of administrative law who loves his country’s mountains and forests. A scholar of church-state relations in Linz. An archivist dedicated to preserving local folk music. A librarian who walked me through his library’s collection of Austrian rare books.

And so I hope the process of exchange and transformation—of knitting together—will continue here in Austria until we return home, just in time for autumn in New England.

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