In a speech and debate with Mark Tushnet before the James Madison Memorial Fellowship in July 2000, he outlined what he considered the greatest challenge facing America: judicial supremacy. By examining New Hampshire political culture from the 18th century through the 1990s, he explained what he thought was at stake in debates about the financing of public schools. He argued that the role of the courts in restructuring school funding away from an older "New Hampshire model" was more of a challenge to traditions of republican self-government than most acknowledged. A strong proponent of a locally funded tax structure for public schools and other measures often characterized as "school privatization", Morgan grounded his arguments in a series of essays for City Journal in the 1990s. First, he argued that the segregationist reaction to Brown v. Board in 1954 gave resistance to judicial over-reaching a bad name in general. In an important 1996 essay, "Coming Clean About Brown", Morgan recommended overturning Brown v. Board. Second, he did not accept the idea that the government should take direct action to foster racial integration. In addition, he, along with his wife Jean Yarbrough, was a strong proponent of the study of the American founders. In his teaching, he sought to nourish a variety of views "hinged" by the Constitution. One of Morgan's most important works, Disabling America: The Rights Industry in Our Time, is in part an extended refutation of Ronald Dworkin's Taking Rights Seriously. Through several essays during the Reagan-Rehnquist period of American political and judicial history, Morgan helped to theorize the intellectual basis of colorblind constitutionalism as an antidote to the kind of argument made by Dworkin.
Dworkin's book, which appeared at about the same time as his important November 1977 essay "Why Bakke Has No Case" in the NYRB, grounded a form of jurisprudence consistent with the affirmative action decision in University of California Regents v. Bakke. Morgan considered Dworkin "one of the most prolific and one of the most audacious theoreticians of rights and liberties writing today." His counter-argument to Dworkin and others on affirmative action was spelled out in an essay, "Negating Affirmative Action". "Across the country, it's beginning to sink in that programs and practices sold as temporary remedies are on their way to becoming permanent features of the American landscape. This situation is untenable, since the majority of Americans agree that non-discriminating colorblindness is the only truly just principle, even though the elites may disagree."
Response to the 1996 "End of Democracy?" symposium at First Things
Within conservative circles, Morgan is known for his attempt to re-unite different branches of the American conservative coalition after the First Things coalition began falling apart. Father Richard John Neuhaus had claimed that the judicial overreaching of recent decades amounts to a "usurpation of politics" which warranted radical resistance to the American government. Morgan, in his writings during the following decade, tried to mend the fallout between Father Neuhaus and those who had left the board—Gertrude Himmelfarb, Walter Berns, and Peter Berger—by encouraging those on both sides of the divide to focus on the problem of "judicial supremacy". Morgan was particularly worried about interpretations of this controversy that heightened the divide between Christians and Jews within the conservative fold. In the essay, Morgan wrote, "we are most effective in opposing judicial activism precisely when we invoke the American constitutional tradition itself— when we speak in the idiom of The Federalist, Jefferson, and Lincoln—not when we stand outside it." His important essay with Jean Yarbrough, "Why the Founding Is Back in Fashion", can also be seen as an attempt to mend the intra-conservative divide that emerged in the wake of First Things' "End of Democracy?" symposium. In the essay, Morgan and Yarbrough try to give an account of what those on both sides of the First Things controversy should hold in common—a restoration of the role that virtue and character played in the writings of the American founders. Morgan argued that those trying to carry on a tradition of local, republican self-government should focus on safeguarding the "institutions—ranging from the family, the farm, and the schools all the way up to organized religions... that shape a distinctive American character." Morgan held an A.B. degree from Bowdoin College and M.A. and Ph.D. degrees from Columbia University. He joined the Bowdoin faculty in 1969 after one year as a Fellow in Law and Government at Harvard Law School. Morgan served as the chair of Bowdoin's Government Department three times—from 1969-1975, from 1983–85, and from 1992-94.
