Plain Talk about Law School Rot

By | 2017-06-02T18:30:05+00:00 May 7, 2017|
Print Friendly, PDF & Email

The legal academy is a strange place.

It differs from other intellectual disciplines in that legal scholarship is published mainly in student-edited law reviews, not peer-reviewed journals. Most faculty members at elite law schools have never practiced law, or have done so only briefly and usually without professional distinction. The curricula at many of the nation’s law schools are larded with trendy courses devoted to identity politics and social issues du jour. Elite law schools eschew the teaching of “nuts and bolts” fundamentals, deriding such practical instruction as resembling a “trade school.”

Law professors are the courtiers to the imperial judiciary, and “constitutional theory” is the vehicle for counter-majoritarian social change.

Even the most widely-followed ranking of American law schools (one compiled by U.S. News & World Report) relies mainly on “peer assessment” (that is, ratings by other law schools) so that it is something akin to a popularity contest. Nevermind graduates’ placement rates, bar exam passage, average starting salaries, and other objective metrics that might correlate with the tangible value of the legal education provided.

Legal academia is an inbred ivory tower with little intellectual diversity, inhabited by would-be mandarins, separated from the “real world” by a wide moat brimming with abstract concepts, abstruse theories, and an overweening sense of self-regard. Law professors are the courtiers to the imperial judiciary, and “constitutional theory” is the vehicle for counter-majoritarian social change.

This peculiar confluence yields two distinctive (but somewhat related) phenomena: First, law school faculties are much more liberal than the already leftward-skewed higher education establishment as a whole; and, second, “constitutional theory” is the most popular subject of legal scholarship, even though few students will ever have occasion to apply it upon graduation. Topics like family law, contracts, real estate, personal injury law, and other “mundane” areas of legal education are shunned by most academics.

What explains this turn of events? Simple: Constitutional law has become the primary tool used by the post-modern cadre of elite intellectuals to supplant representative self-government with rule by the legal professoriate. Since the 1960s, we essentially have been governed by the federal courts (and an out of control bureaucracy) instead of by our elected representatives.

 

Legal scholarship is used by the elites to justify activist judicial decisions that thwart popularly-enacted laws or depart from the original meaning of the Constitution. Much of it is theoretical mumbo-jumbo designed to obfuscate its true aim: putting the elites in charge. The mandarins are convinced that their policy choices should prevail over those of the uninformed masses, because the mandarins believe they are wiser and more enlightened. The republican form of government is regarded as backward and outmoded, especially if it stands in the way of the currently-fashionable policy goals and “settled science” desired and advocated by the professoriate.

Activist judges, enabled and encouraged by the legal academy, frequently override the effects of elections and legislation with which the “chattering classes” disagree, effectively allowing a privileged clique to govern the nation by judicial fiat. For decades, gloomy prognosticators such as the late Robert Bork and University of Texas law professor Lino Graglia (sometimes joined by the departed Justice Antonin Scalia in his witty dissents) have darkly warned that in the guise of “constitutional interpretation” a cultural elite seeks to wrest control of public policymaking from the American public, whose bourgeois values and beliefs they openly disdain. Although Bork and Graglia were sometimes dismissed as modern day Jeremiahs their dire predictions have proven to be uncannily accurate.

In recent decades, academics have constructed many different theoretical justifications for a more expansive judicial role. Graglia has described contemporary legal scholarship as a “cottage industry… in the production of ever more esoteric theories of constitutional interpretation.” Graglia also notes that most constitutional litigation involves just four words, “due process” and “equal protection,” leading him to conclude that “The 14th Amendment has to a large extent become a second constitution, replacing the original.” As Northwestern University law professor John McGinnis has written, “Sometimes there seem be as many theories of the [14th Amendment] as there are theorists.” New theories are spawned every day, straying further and further from the original meaning of the Constitution and even from that particular amendment.

Writing for both academic and lay audiences, Bork was a tireless proponent of the view that judicial decisions purporting to interpret the Constitution must—in order to be legitimate—comport with the original understanding of the Framers. After all, that understanding is the only understanding to which the people have had an opportunity to give their consent. Bork’s unrelenting criticism of “noninterpretive” theories of constitutional law in the 1970s and ’80s paved the way to the modern embrace of “originalism” as the dominant mode of constitutional decision-making by principled conservatives.

As Bork famously observed, “The truth is that the judge who looks outside the Constitution always looks inside himself, and nowhere else.” This was anathema to the legal establishment’s social engineers, who had devised elaborate theories justifying the “discovery” of new rights in the “living Constitution.” Judicial restraint would clip the wings of the narcissistic legal professoriate, and with it the New Class they serve.

Heresy has a price. In 1987, when President Reagan nominated Bork for the U.S. Supreme Court, he was shamefully denied Senate confirmation—but not filibustered—in retaliation for his unfashionable advocacy of judicial restraint. Graglia was dealt a similar fate, when his nomination to the Fifth Circuit was derailed in the face of fierce opposition by the American Bar Association.

In the ensuing 30 years, as the courts have increasingly asserted themselves as the final arbiters of national policy, confirmation battles have—predictably—become even more politicized. The recent Senate battle to confirm President Trump’s nominee to the Supreme Court, Neil Gorsuch, requiring elimination of the filibuster, will seem like a chorus of “Kumbaya” when the pivotal seats now held by Justice Anthony Kennedy or Justice Ruth Bader Ginsburg become vacant.

The mandarin class in the legal academy cannot resist the urge for power, and as our culture becomes ever more polarized, the legal professoriate grows ever more estranged from the rest of society—Hillary’s “deplorables.” This is not necessarily a partisan phenomenon. On the left and the right, constitutional theorists—sometimes claiming the mantle of originalism—busily concoct elaborate rationales for disregarding the electoral majority’s wishes regarding traditional marriage, immigration, border security, capital punishment, and a host of other issues, in lieu of the theorists’ own policy agenda.

The real irony, however, is that few voices in today’s legal academy advocate judicial restraint, even among so-called “originalists.” Although it still holds sway among conservative political scientists such as Georgetown’s George W. Carey (author of In Defense of the Constitution), the once-influential Bork/Graglia position has seemingly—and inexplicably—fallen out of favor in the law schools. I am old enough to remember when constitutional theory could be divided into two camps: originalism (restraint) and non-originalism (activism). Restraint is no longer “cool”; it leaves power in the hands of the detested proles.

Now, in Baskin-Robbins fashion, there are at least 31 different flavors of originalism, some of which—like the libertarian theory of “judicial engagement”—would grant to courts more discretion to review laws than the most extravagant “living Constitution” theories. Federalist Society co-founder and Northwestern University law professor Steven Calabresi has apparently had a mid-life libertarian epiphany and now—purporting to apply originalist techniques—concludes that the Constitution protects same-sex marriage. Creative “originalism” can also be stretched to reach free-market outcomes Ayn Rand would applaud. George Mason University law school professor Michael Greve has archly referred to libertarian scholars who presume to “read the Constitution as a municipal code for Dagny Taggart’s valley.”

This is not necessarily a partisan phenomenon. On the left and the right, constitutional theorists—sometimes claiming the mantle of originalism—busily concoct elaborate rationales for disregarding the electoral majority’s wishes regarding traditional marriage, immigration, border security, capital punishment, and a host of other issues, in lieu of the theorists’ own policy agenda.

It is no coincidence that some self-styled “originalists,” such as libertarian Georgetown University law professor Randy Barnett, dismiss Bork and Graglia as “old school” proponents of a view that “used to be the dominant strain in conservative circles,” in “years past.” Barnett crows that Bork and Graglia used to “rule the roost,” but that “Times have changed.” Is judicial restraint really passé? Barnett contends that “as originalism has assumed an increasingly powerful hold on the legal culture … one must either reject judicial restraint, or attempt to redefine it so it is compatible with originalism.” (Barnett has gone so far as to claim that appeals for judicial restraint are a form of conservative “living constitutionalism,” inverting the very terminology that launched the originalism debate!)

The “originalism” Barnett speaks of is not the originalism espoused by Bork or Attorney General Ed Meese. Barnett has in mind a fashionable new variant of originalism that would empower judges to evaluate the necessity and efficacy of laws to determine if they infringe “unenumerated” (that is, unwritten) rights purportedly lurking in the Constitution. Any sound “originalist” conception of the Constitution must accept that judges should confine themselves to enforcing the express provisions of the Constitution. No matter how exotic the theoretical justification, judicial review does not authorize courts to divine invisible rights or serve as Delphic Oracles pronouncing judgment on the wisdom of laws.

Shifting intellectual fashions do not alter the original meaning of the laws, or the role of judges. Trend-setting law professors may think that government by judiciary is de rigueur, but most Americans properly view it as lawless usurpation.

About the Author:

Mark Pulliam
Mark Pulliam is a lawyer and commentator who fled California and now lives in Austin, Texas. He is a contributing editor at the Library of Law and Liberty.
  • tipsterbl

    Like fake news what is described in this article can only be seen as Fake Law.

  • usamopatriot

    The only good lawyer is a dead one.

    • Counsellor

      Thus do “clients” now become saprophytes.

    • JJJ

      I’m a lawyer. I totally and completely agree.

      • usamopatriot

        You are an exception. You are an honest one.

        • JJJ

          LOL … no I’m not actually.

          There are so many of us that feel this way, and those of us who can are transitioning into other professions.

  • Very well said. The naked results-oriented pseudo-scholarship of the legal academy is terrible, and it’s frankly problematic so much legal scholarship occurs at all. It’s as if a bunch of 150 IQ people sat around analyzing the rules of monopoly ad nauseum. Law is more like a trade than it’s given credit, and judicial decisionmaking should be boring, predictable, and technical in nature. The Constitution is not a prism through which every social controversy should be resolved, and something must happen and soon to restrain the Courts. I was hoping Trump would go full Andrew Jackson on immigration when the Courts interfered, but alas.

    • Gene Frenkle

      The guy that created the right to keep guns in the home for self-defense, Eugene Volokh, had to have a 202 IQ to create a right over the objections of the liberals with 150 IQs.

  • Ron Mexico

    If a Constitutional right can be limited or even determined by consent of the “majority”, then it isn’t a right. Constitutional cases are routine cases of a minority attempting to assert their rights against a prevailing view. But that is the whole point. Protections are not in the Constitution because they were popular. They are in there to protect against the oppressive tendencies of a majority.

    Further, it is flat untrue that attorneys do not use Constitutional law after law school. If one goes into Criminal Law, it is a daily companion. Every time it is necessary to serve an opposing party, concepts of due process and notice are triggered. Ditto when dealing with any government agency on behalf of your client. Or if you represent any entity that has 1st amendment rights, which in this day and age includes non-profits, corporations, and other entities.

    tl;dr: The author is a misinformed fool.

    • Mark Pulliam

      “Restraint” doesn’t mean that valid constitutional rights can be ignored, only that courts should not make up rights not contained in the Constitution. I didn’t say no attorneys practiced con law, only that few did. Criminal law/crim procedure doesn’t revolve around the arcane 14th amendment theories I was talking about.
      So you obviously missed the point. Tl,dr, indeed.

      • John Say

        The problem with your and Borks variant of originalism is that ultimately it provides NO meaningful constraint on the federal govenrment -only on activist judges.

        While I noted that the constitution itself makes absolutely clear the existance of “unenumerated rights” – regardless of whether it tells us what they are or not.

        More importantly the proper understanding of the constitution – as a specific bequest of LIMITED powers, make EVERYTHING not specifically delegated to the federal government a right (atleast federally).

        Ultimately courts do not need to “make up rights” – they need to quit finding federal powers that are never given and Borks democratic deference is no better than the “judicial activism” of the left.

        Your attacks on 14th amendment interpretation might have some merit – had the courts nut gutted the rest of the bill of rights. We find lots of constitutional law fixates on a few clauses or amendments.
        That nearly always occurs when the courts make others toothless.

        I would note further that originalism itself has a flaw – in that just as today – what our founders and the people of the time beleived was often logically inconsistent.

        The very same people who belived strongly in freedom of the press passed the alien and sedition act of 1798 – which I doubt anyone – originalist or otherwise would hold constitutional – even those of the time found it of dubious constitutionality.

        The same men who said “all men are created equal” owned slaves.
        Much of the constitution is irreconcilable with slavery – and yet the constitution explicitly includes slavery.

        At some point we are forced to take what our founders wrote by its plain language meaning – not the plain language meaning of today – but even of the time – even if that is not what they intended.
        Because often THEIR intentions were self contradictory.

        Even Scalia’s originalism starts with the meaning of the words at the time.
        The contracts clause bars government from interfering with contracts.
        That is what our founders wrote, it is the plain meaning, it is what they intended.
        Well except that inarguably had they thought of it – which they did not, they might have accepted gay marraige or some other contracts – but they did not think of it.
        It is not necescarily our job to read their minds – over their plain words, even when we might be able to know that they would have themselves decided in contradiction to what they wrote.

        As a similar example – must every analysis of 5th amendment rights of anyone who is a minority explicitly refer to the 14th amendment to assure that the 5th amendment applies to all.

        With few exceptions the constitution and bill of rights were not written with myriads of exceptions – that it is likely that our founders would have found – had they thought of them.
        But they did not. Nor in many instances did they write about them.

        Maybe you are aware of our founders writing that gay people were not entitled tot he same rights as others. But I am not aware of such writing.
        It is had to argue that they would not have not have excluded gay marraige had they considered it – but they did not, and they chose to write broad not narrow.

        To decide that they intended not to extend contract rights to gays requires us to get inside their heads.
        Which is supposed to be something originalism ends – dealing with the meaning of words not guessing at intentions.

  • Marvintyson

    Great article! Although it will be largely ridiculed by the leftist academia that have most to gain from the current perversion of the Constitution and today’s common practice of judicial legislation.

    • Counsellor

      “Perhaps we are observing something more like displacement than perversion of the Constitution.”

      RRS

  • CM DeNeve

    Great article. An honest, and very liberal, law professor wrote a good book on this subject “Supreme Myths” that critiques the illegitimate role courts are now playing in our society. The point being, honest scholars on both sides of the political spectrum can see this problem, if you are not trying to be Professor Chemerinsky and legitimize fake law through spectacular mental gymnastics and obfuscation that requires a high degree of intelligence indeed.

  • Brother John the Deplorable

    Beware anyone who claims to be right because “times have changed” or because “it’s {insert current year}.” That’s someone without an argument trying to shame someone else with a better idea into joining all the popular kids in jumping off the bridge.

  • ADM64

    The originalism of Bork and Graglia amounts to nothing more than a version of the progressive doctrines they claim to dislike. In particular, they embrace the view that the government can do anything not explicitly forbidden by the Constitution, and completely ignore the Declaration of Independence. Thus, limited government is attacked by so-called “originalists” who view any interpretation of the constitution beyond its literal words as arbitrary, no matter how logical.

    The libertarian view of judicial engagement is correct. The courts have a duty to review laws and strike them down when they are unconstitutional. Strict scrutiny and suspicion of legislative motives is appropriate. Given that over the last four or five decades, the courts have actually struck down barely 1% of duly passed laws, and abdicated entirely the transfer of legislative power to administrative agencies, the argument that the courts are too active is absurd on its face and blatantly false. But, when progressives ram through duly passed laws that conservatives don’t like and some Borkian originalist says, “Nothing in the literal text of the Constitution forbids this” we’ll see that “self-government” is no check either. The fact is that the country was founded on the principles in the Declaration, namely that government exists solely to protect individual rights or it was founded on nothing.

    • Mark Pulliam

      Congress lacks power under the commerce clause to enact the hypothetical law you cite. In any event, the Constitution does not forbid all bad ideas; a republican form of government presupposes that elected representatives will exhibit common sense and good will in areas not constrained by specific provisions of the Constitution. The Declaration is not a governing document; the Constitution is. The rest of your comment is just Cato/IJ talking points.

      • John Say

        I do not think the poster was claiming a Commerce clause justification.
        Further according to majoritarian originalism – he does not need to.

        Demanding that representatives excercise common sense is NOT consistent with originalism.
        As is noted elsewhere – Borkeans see no problem with congress enacting stupid laws – it is the role of the majority to reign those in.

        The fundimental problem with Borkean originalism is that it is inherently and openly democratic majoritarian.
        And that causes a massive self contradiction – because the one thing our founders were NOT was proponents of majoritarian democracy.

        The principle that the law and constitution must be interpreted as written, and that the meaning of the words must reflect the common understanding of the people who ratified the law or constitution (not the people who wrote it) is an incredibly important construct.

        I can not conceive of a means to reach “the rule of law, not man” that does nto include that.

        But necescary and sufficient are not the same.

        To reach sufficient for “the rule of law” Bork relies on democratic majoritarianism.
        In doing so he runs afoul of his own first principle. Because our founders were not democratic majoritarians.

        Quis custodiet ipsos custodes?
        As Madison noted in federalist 51 a reliance on the majority is not sufficient.

      • John Say

        The constitution is a blueprint for govenrment. It is NOT a justification for government, it does nto define the purpose of government.
        The declaration is NOT a blueprint for govenrment. It is a justification for government, it does define the purpose of govenrment, and most importantly it defines how we identify when govenrment has exceeded its justified powers.

        When government violates the principles of the declaration that government is illegitimate.
        That is what the declaration plainly says.
        If the declaration has no consequence, no import, no power – then our govenrment today is not legitimate – the constitution itself is illegitimate.

        There is no justification in the constitution of the constitution.

        But you can ignore the declarations consequence if you like – until its breaches are egregious enough and then we once again revolt.

        So think about this – most of the very same people who wrote the constitution, wrote the declaration.
        The later was intended as the justification for breaching the existing scheme of law and governance they operated under and forming a new one.

        If the declartion has no meaning – then neither does the constitution.

        The declaration is most definitely a governing document.
        It defines what govenrment MUST and MUST not do.
        What it does not do is define precisely how.
        The constitution describes the structure of govenrment – not the purpose or justification for.

    • Gene Frenkle

      Your hypothetical law is clearly unConstitutional pursuant every modern judicial philosophy.

      • John Say

        “The truth is that the judge who looks outside the Constitution always looks inside himself, and nowhere else.”
        And where in the text of the constitution is it that a law requiring wearing yellow stars is explicily unconstitutional.

        You are saying that it would be so according to every philosophy – but we are not asking about philosophy.
        we are asking where in the text of the constitution it is barred ?

        Of course it is unconstitutional – but only when you look inside yourself – for something not found in the constitution itself.

  • Evan Conard

    The article makes a ridiculous argument about the failure of law schools, and legal academia to a greater extent, because he disagrees with certain judicial philosophies. First, law curricula is probably unchanged since this former Latham & Watkins attorney graduated law school in 1980. 1L courses are pre-bar courses such as Contracts, Property, Evidence, and Civil Procedure. 2Ls and 3Ls generally continue to pursue pre-bar courses during their remaining years of law school so as to better prepare for the bar examination.

    Second, judicial activism is a myth. What judicial activism really says is, “I disagree with the outcome without fully understanding the analysis that led to the rationale of the case.” Conservative judges such as Bork and Scalia are no less activist than their liberally-minded counterparts. Judicial activism is largely a myth. I ask the author to point to a case which is so obviously activist that it wholly deviates from the principle of stare decisis.

  • JJJ

    Law school is a SCAM !!!!

    What they teach is very arcane, and it’s not applicable to anything except arguing before the Supreme Court …. which maybe only 5 or 6 people in the whole country ever get to do (mild exaggeration, but you get my point).

    This has been “false advertising” by law schools. Talking about how versatile the law degree is was one way to lure students into applying, as well as to reassure lower performing students that they still have good career options upon graduation.

    Law professors will go out of their way to claim that a legal education teaches you how to “write” and “argue” and “identify issues.” What they don’t tell you is that ANY graduate degree teaches you the same exact thing, and also you do NOT need a law degree to read federal statute.

    If any of you have been following the trends in law school applications, you’ll know that applications are down and law schools have been forced to lay off faculty. Something like 16% of law school faculty has been let go in the past 5 or so years.

    As a result, there is no longer any significant barrier to entry into the legal profession. Something like 85% of law school applicants are able to get into law school. A decade ago, it was only 50%. Plus, today, they are even accepting the GRE, rather than the LSAT, in many law schools, simply to lure students into applying who would otherwise not have done so.

  • Fred Wild

    And don’t forget the corrupted young minds graduated by the thousands every year from the nation’s law schools. Equipped with a disdain for democracy and contempt for free markets and trained against mere facts and true history, these new stewards of the law take influential posts in government and business primed to poison American freedom at every opportunity.

  • QET

    Pulliam is correct, and the problem is even worse in the field of “international law.” The panting desire of most professors of that fiction to establish and empower supra-national legal “institutions” that can arrest, convict and punish legitimate political actors is really something to behold.

    Plain old materialism explains the greater part of this phenomenon. The institution of professor generally (in the US anyway), law professor included, has evolved just like any other social institution. It is first and foremost a career, an occupation. The individuals attracted to such a career want the same things we all do in our own chose occupations: to succeed, be well-paid, be regarded with esteem and deference by others in the profession. And the number of law professors has increased exponentially in the past 50 years as every little college opened its own law school to take its share of the easy money (which is getting less easy as the glut of lawyers is producing a good old-fashioned capitalist “crisis” in the industry).

    The foremost condition in the general professoriate environment–law professor no less than the rest–is the requirement of “acknowledged expert status,” which demands relentless publication. The growing population of law professors can sustain themselves in this environment only through increasingly radical sub-sub-specialization. A young professor can hardly gain the necessary “acknowledged expert status” in a field or sub-field already crowded with the experts of the prior generation. Anyone who reads the Volokh Conspiracy at the WaPo can see this law of the law professor jungle at work especially in the case of Ilya Somin, whose relentless posting on his chose sub-fields and shameless superciliousness are, to me, representative in every way of the current state of development of the profession.

    It is also a career requisite, if you want to be acknowledged by others, that you in turn acknowledge them. Read any law review article from 50+ years ago and read one from today. Today’s relentless foot-noting, often no more than a mere reference of the form “See Pulliam, Plain Talk About Law School Rot, 1 Am. Great. 57 (2017),” has expanded to fill the available sentence count. It is typical for a 30-page article to have 300 or more footnotes, whereas in the past you might have anywhere from 15 – 60. So many other professors nowadays who must be formally acknowledged if one wants them to do likewise in their publications! What is a career-minded young professor to do? It makes their “writings” unreadable. And to the extent you do attempt to read them, you quickly find that, unlike the older law review articles, they say almost nothing that is not simple repetition of what someone else has said, recently, in another law review article. Any young professor with the temerity to offer his own original ideas, ideas that support no tidal wave of footnoting, will be assured of NOT receiving the necessary acknowledgement from his peers in the profession, who, after all, have no ideas of their own to offer and so have no intention of allowing someone who does to get away with it.

    It would all be amusing if it were as innocuous in its effects as the same phenomenon going on in the field of, say, 16th century Tyrolean literature.

  • joenyc

    time to revisit judicial review; and make the Court advisory.
    =
    Also it is time for decisions to be unsigned, so that we have to read the decisions and not just the byline.
    =
    the tyranny of the majority is reversible by an election, the tyranny of the judiciary is reversible only by judicial hypocrisy, that is, to say that a precedent, stare decisis, is not a precedent;

    I’ll take majoritarian tyranny OVERALL vs judicial tyranny, your mileage may vary.

    PS I’ve read Marbury, and the Federalist paper from which the reasoning came.
    ===

    Mostly, since our Const supports diametrically opposed interpretations, it does not exist as a governing document, it is only rhetoric and heuristics

    to play cutesy, it is ‘void for vagueness’

    • John Say

      Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
      Federalist 51.

      I think Madison is pretty clear that majoritarianism is NOT sufficient.

      One of the problems with Bork and Pulliam is their failure to understand that saying “NO” to government is not at all the same as saying yes.

      A judge that finds a positive right – frankly even with the backing of congress errs and breaches the rule of law.
      A judge that finds that the federal govenrment has exceeded its constitutional authority and imposed on an “unenumerated right” has imposed the rule of law. The mere fact that the government has exceeded its limited mandate should have been enough. But if an unenumerated right makes that limitation more paletable – fine with me.

      I would also note that our founders were most definitely NOT fans of majoritarian democracy.
      Casting originalism such that it falls back to majoritarian principles rather than government purposed to secure rights is inconsistent with the notion of originalism.
      It is like saying we take you literally – except with regard to the founding document of the country.
      Or except with respect to your core views on govenrment.

      • joenyc

        the founders were not fans of the mob, or passions, I accept that

        The Const, though, is imho silent on that, even if we winkle out in the mass of verbiage, a point here and there

        Majoritarianism, is a form of democracy, so is populism, and so is Donald Trump, unfettered (maybe) , we HAVE fetters, ( ie the Electoral College) (and some of his judicial reversals)

        so I see nothing in the Const on restricting democracy, and such restrictions as exist, imho are narrowly defined, the argument is made, the people grant enumerated rights narrowly, you have surely heard that, you are doubtless familiar with the enumerated rights argument ;

        imho, the vast expansion of the federal system, is destruction of the founders’ views, which goes back to Mr Lincoln and his reinvention of USG in war, and later Mr Roosevelt (the second) in some 1920s and 30s economic distress, and back to Wilson, who gave us Brandeis, and locking up dissenters , FDR gave us Court packing, I hear of such and I wish I were ‘packing’ (NOT! but the metaphor is persuasive even compelling)

        =
        it may be that history only goes one way, but I’d like to try to rewind
        =
        The judicial invention of Abortion as a federal rite or is that right, is the purest example of federal usurpation even as Griswold had a few pages inventing or discovering privacy; even Kelo drew at length on economic eminent domain, persuasively so . Roe had an entire section of what is life, for purposes prenatally of protection, section IX.

        Such matters of moment – what is life, – belong in the legislature

        and the judicial ukase is hated Left and Right
        =

        as a self-governing ensemble (that’s us) , we, to borrow from the Founders, have to anticipate the down-side of our popular vs judicial; (ie constitutional/ limited ) governance,

        and electoral majoritarian tyranny is more reversible than judicial tyranny (he said), thus preferable, demons who destroy democracy exist in the streets and in the robes

        =
        What mostly troubles me, I’ve been reading the Constitution since HS 1960, my earliest ‘moment of truth,’ was the conflict between POTUS a Commander of military, who can make war in all but name, and the Congress,. who can make war only in name

        what mostly troubles me, is, that in our SCOTUS jurisprudence, Const, is a blank check, we find whatever we want, to embrace or despise

        and THIS is NOT a foundation document

        =

        in lawyer speak it is ‘void for vagueness’ and thus unenforceable .

        The federalist paper which articulated judicial review, said arguments taken in toto into Marbury, did not create judicial review, it merely said – we decline to enforce, having no authority to do so

        =
        likewise, I applaud the Executive, who issues signing statements, saying ‘ this is what the law means to me, ‘

        and from time to time, the judiciary will say, dear legislature, if we have misread the law, you are invited to clarify

        phew!

        • John Say

          Our government is not a democracy – nor is majoritarianism a principle in its structure.

          You can have all the democracy you want – outside of govenrment.
          Inside no.

          That has only been toughed on by others – regardless – rights are NOT granted by people.
          Right precede government not the other way arround.
          That is pretty close to by definition.
          A right is something that you hold even when the majority disagree.

          Please explain how you can have the 4th amendment without the right to privacy ?
          The right to privacy is not an unenumerated right. It is merely an unnamed right.

          Rowe was decided wrongly – meaning the science argument was nonsense.
          Science has no place in law. All the rot about trimesters and viability just left us fighting for decades.

          We have common law precedents that would have reached close to the same results.

          Even if a fetus is a human life – the law does not allow one human to force another to sustain their life. Their is no right to be a parasite.

          A woman has the absolute right to end the babies dependence on her body – just as someone can not demand your kidney from you because you are a match.
          And infact even if you agree to give your kidney – you are still free to change your mind.

          What a woman can not do is kill the fetus. But if its eviction from the womb results in death so be it. We are not obligated to sustain the life of others – there are no positive rights.
          BTW there are lots of other consequences of resolving abortion that way.
          A woman could have a 7month old fetus removed – the govenrment could keep it alive and force the woman to pay child support.
          A woman’s right to her own body is just that – a right to her own body.
          It is a right to not be preganant. It is not a right not to be a mother.

          • Fred Wild

            Privacy is nonsense. No one IN society can stand aloof FROM society.

          • John Say

            I guess you can beleive whatever you wish.

            I wonder if you will fell the same way about privacy when someone tries to stick a purple hairy rotating shaft with barbs past your sphincter.

            Society is not a thing – individuals are. Society has no independent existance, not consciousness.
            It is a construct of the human mind.

          • Fred Wild

            Then I suppose those who hold aloof from society will not mind if society holds aloof from them, perhaps by withholding society’s protections or their recourse to society’s laws or their participation in society’s life.

          • John Say

            If you want to debate the social contract you should probably learn something about it.
            Start with Locke.

            Society and government are NOT the same thing.

            Participation in society is entirely voluntary and you are free to do so as you wish and to make that choice dynamically – and others can make the same with respect to you.

            Participation in government is also supposed to be voluntary, but it is all or nothing, It is also a specific contract in return for the protection by government of all your other rights and freedoms – including your privacy, you surrender your right to initiate violence against others.

            If you read the declaration of independence it strongly mirrors that – deliberately.
            Our founders were specifically asserting this what government is, this is what it promises to do, and when it fails it is our right to replace it.

            Regardless, government is NOT society.

        • John Say

          You last argument is also an argument AGAINST an overly broad defintion of prohibited judicial action.

          What is here called judicial activism is dangerous here when it is NOT in the power of the people or congress to fix.

          Wherever possible the court shoud invalidate laws where those laws are flawed – even if the flaws are small – congress continues to exist to fix that.

          When scotus declares something unconstitutional that we all beleive should be – we can amend the constitution.

          But the reverse is harder – when the courts semi fix broken laws – we do not get the oportunity to really resolve the problem. When the courts expand govenrment power without that power being delegated to governmnent constitutionally – even an amendment may not fix that.

  • John Say

    While you correctly point out that there are new variants on originalism.

    That argument does not make that of Bork inherently superior or correct.
    Or most accurately consistent with the “rule of law”.

    I doubt any proponent of originalism in any form beleives that our founders intended limitless government.
    I think we are all agreed that they intended the constitution to constrain government – particularly the federal government.

    That said though the founders clearly expected congress and the executive to be constrained by the constitution they do not have appeared to have thought much about how.
    Madison clearly noted in federalist 51 – that a reliance or “the people” or democracy was insufficient.

    Bork’s federalism and judicial restraint results in an unconstrained federal government.
    If the courts are to defer to the legislature then there is no constraining government.
    Bork may preserve the integrity of judges – but he does not preserve that of the country.

    The supreme court answered the question of who imposes the constraints of the constitution on the rest of government quite early in this countries history – if controversial, if not exactly what the founders had in mind, still the same founders ultimately accepted it.

    If the constitution has meaning at all, the federal government must be constrained by it.

    Your rant regarding unenumerated rights perfectly identifies the problem.

    This libertarian judicial activism that you rail against is the ONLY form of originalism that is actually consistent with the PLAIN LANGUAGE of the constitution. ALL the words of the constitution must have meaning. We do nto get to pick and choose. The 9th and 10th amendments make it absolutely clear that the constitution vests enumerated powers to the federal govenrment – that ALL else is with the states and the people.

    The only issue with unenumerated rights is the distinction between positive rights and negative ones.
    It should be trivial for anyone that holds the constitution to have any meaning – we the people are free to do whatever the constitution did not empower the federal govenrment to limit us from doing.

    Though quite honestly – just holding the government squarely to the limits inside the constitution eliminates the entire question of enumerated and unenumerated rights. If the government is barred from interfering in our rights of contract – as the constitution clearly states – then pretty much all economic regulation is barred.

    Regardless, if you wish to Deify Bork as the Freud of originalism – go ahead.
    Being first, or early, being right about many things, is not the same as being right about all things.
    Freud changed the world of psychiatry forever. But outside of a few, most do not adhere to him as if he delivered the truth on stone tablets.

    Bork started or atleast raised to prominence a very important conversation.
    But some of his views on the subject are wrong.

    They are wrong because they result in the rule of man – not law.
    Judges abdicating their role to legislature may make the rule of man by judicial fiat more difficult.
    But it does not free us from the rule of man by legislative fiat.

    What I see as the fundimental issue – the underpinnings of originalism, is that as Madison noted some other force besides the people must constraint the government.

    Bork sees judicial restraint as judges constraining themselves.
    I see one of the most important roles of the court – one it took upon itself while the founders were mostly still alive, and with their consent if not blessing – is to say NO to government.

    When the courts are expanding on the power of government – THEN they are legislating from the bench. THEN they are engaged in “judicial activism” THEN they are violating the precept of the Rule of Law, not man.
    When the courts are contraining attempts by govenrment to overreach – that is judical restraint – the judiciary restraining both itself and the rest of govenrment from taking to itself power it does nto have, from substituting the rule of man for the rule of law.

    • Mark Pulliam

      You make a lot of unrelated points, here and elsewhere. I agree with you that the federal government has limited and enumerated powers, which SCOTUS has not properly enforced, especially Congress’s power under the commerce clause. They should reign that it, consistent with the original understanding. Most of the flaws in the Constitution have been corrected by amendment, and Article V remains available to future amendments if an adequate consensus develops. I don’t believe in unenumerated rights. The Declaration was a revolutionary manifesto, not a governing document. It is irrelevant to constitutional interpretation. All powers not delegated to the federal government were reserved to the STATES. The states did not cease to exist upon ratifying the Constitution. There is no sound textual basis, consistent with the original understanding, for federal courts to meddle with states’ definition of marriage as a union between one man and one woman. No society is perfect, or ever will be. The Founders were not utopians. They believed that power would be abused the least through the republican form of government, and federalism. Judicial activism undermines both.

      • John Say

        Borks Majoritarian form of originalism does NOT allow SCOTUS to reign in the federal government when it exceeds its constitutional authority.
        We do not actually need unenumerated rights – or even enumerated ones – if government powers are well defined and narrowly constrained.

        But regardless of whether you “beleive” in unenuerated rights – they are right there in the bill of rights.
        There can be ZERO doubt that they exist.
        Amendment 9
        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        The only question is what are they.

        We do not disagree on the process to fix flaws in the constitution.

        Your characterization of the declaration and constitution is only partly correct.

        The declaration is not a governing document – meaning it does not lay out the structure of government.
        It is absolutely in that it lays out the principles, purpose and foundations of government.
        Further it HAD to do that – it had to provide the moral, philosophical and “legal” justification that our founders felt was necescary to break from great britain.
        Without it we have no right to craft a constitution.
        Without the declaration the constitution does nto exist.
        Not in the historical sense,
        not in the legal sense
        not in the moral sense
        not in the philosophical sense.

        It is no accident that myriads of peoples seeking to separate themselves from some other nation have cribbed our declaration.

        The declaration is many things – one of them is the “legal” argument that we were entitled to separate from GB and form a new government.
        To do so The founders had to state as principles that they asserted bind ALL of mankind the purpose and foundations of government – that was necescary to be able to assert that GB had failed to provide those and there fore its government, its laws, held no further claim on us.

        The words in the declaration do not become untrue today. They do not become untrue because we know have a constitution.

        Our constitution as written is still flawed – but I can live with that and the mechanism for fixing that – but only if it is enforced as written. While Borkian originalists are slightly more likely to do that than living constitutionalists – you can reach the same limitless federal power through Borkian originalism.
        Bork’s own decisions and arguments make that clear. Though not identical – both Bork and Scalia defer far too much to the federal government and far to little to the constitution.
        There default favors democratic majorities as the means of enforcing the constitution.
        That is nonsense. Madison did not accept that – neither do I.

        “All powers not delegated to the federal government were reserved to the STATES”
        Absolutely wrong!
        Amendment 10

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

        What is clear is that powers not delegated to the United States do not reside with the federal government – that is all. They MAY reside with the states – or they may reside with the people.
        Regardless, they do not default to the states.

        Marraige is a contract – the constitution explicitly bars the states and the federal government from interfering with contracts.

        I would agree that our founders never even thought about the possibility that it marraige could apply to gays. We also have a bit of a conundrum because at the time many states were inextricably linked with specific religions.

        I have zero problems with any religion deciding for itself and its adherents what constitutes a marraige.
        I have zero problems with people, churches, organizations saying they will not recognize marraiges between two people of the same sex (or different races, or …).

        But from the perspective of government it is just a contract and nto the business of either the state or federal govenrment.

        So NO the state DOES NOT get to define what constitutes a marraige.

        And you can not actually get to states defining marraige through originalism because it requires you to guess what they would have done had the question been asked of them – I am sure we can accurately do that – but it does nto matter, we are not allowed to.

        This is the difference between the fallacious original intent originalism – which fixates on guessing what the authors of laws intented, and originalism rooted in what the plain meaning of the words was to the general public – those the laws applied to.
        And the relevant word here is CONTRACT – not marraige. And we are not allowed to guess at their intentions – even if we very likely can guess right.

        BTW Bork assertion that without anchors we go inside ourselves was only partly correct.
        We go inside ourselves no matter what – his originalism is just a reflection of his internal values.
        That is not to say that he had no values at odds with his rulings. It is to say that his value of his flavor of originalism trump those other values. Regardless he is in the same trap.

        You are correct the founders were not utopians.
        But that weighs AGAINST you. The Borkean originalism relies on democratic majoritarianism to substitute for what it calls judicial activism.
        Unfortunately our founders did not assert what constrained govenrment – beyond the people.
        But they did assert that the people were NOT sufficient.
        Which clearly is at odds with Borkean originalism.

        The early Supreme Court by Borkean terms was Activist. Mostly our founders accepted that activism.
        The 11th amendment demonstrates that THEY found they own means of constraining it.
        I would note that the 11th amendment does NOT remove from Scotus final authority for the interpretation of the constitution.

        What judicial activism does, depends on what judicial activism means.
        When the courts say they can not find some power government wants in the constitution – I think Madison is happy – certainly I am.

        Scalia’s argument that the constitution does not prevent government from doing something stupid – might be true in the broadest sense – but it is incredibly weak.

        The purpose of the constitution is to define the extent of the powers of govenrment – limited govenrment, but still more power than the articles of confederation, and second and deliberately to make that power very hard to use – to make the use of power require sustained supermajoritarian support.
        In otherwords the constitution does nto prohibit govenrment from doing something stupid – but it tries very very hard to make it difficult to impossible.
        If the court is faced with something that govenrment wishes to do that is stupid.
        The odds are incredibly high that it is also unconstitutional.

  • MrSpitBall

    Excellent piece. Every American should read this. It unwraps a situation that I was aware of but did not fully understand. A real eye opener. Thanks.

  • railroad_gin

    The issue is not whether a court is active or inactive. It whether such activity or lack thereof is rooted in the Constitution. Courts should be active when a law violates the constitution. They should be inactive when a law does not violate the Constitution. One doesn’t have to agree with Randy Barnett on every issue to see the folly of elevating concerns over activism with concerns over fealty to the constitution itself.

    • Mark Pulliam

      My definition of “restraint” vs. “activism” turns on whether the decision is supported by the clear terms of the Constitution. See my National Review article, “The Quandary of Judicial Review.” My disagreement with judicial engagement is that it encourages judges to recognize invisible (and therefore nonexistent) rights.

  • Schmutzli

    Mark this down.

    When Buzzy Ginsburg starts her dirt nap, the hue and cry from the left will be that it is a “liberal seat”, a Jewish seat, a woman’s seat. It will also be said that person needs to come from Harvard, Yale, or Princeton. The Stupid Party establishment will cower and if they don’t concur outright, they will accept it in how they let the marxocrats lobby for and control the confirmation process to produce some Ginsburg-like goofball to replace the original. In other words, Shut upChuck Schumer’s “mainstream” marxist.

    I don’t think much of Scott Brown, but I will always remember how great his reply to the “it’s the Kennedy seat” – after World renowned waterborne rescue expert Teddy Kennedy – was. Paraphrased- “It’s not the Kennedy seat, it belongs to the people of MA” – resonated throughout the land at the time.

    That hue and cry needs to be ignored. It is not a Jewish seat. It is not a woman’s seat. It is not a “liberal” seat. It is not a poison ivy league seat. It is a seat on the SCOTUS.

    It needs to be filled with a person of great character, integrity, morals, and ethics.

    Good luck finding that person in the legal “profession”.

  • Schmutzli

    The law school formula is pretty simple – remove idealistic ethical behavior and replace it with arrogance and corruption with the objective being to transfer as much wealth as possible from people who earn it to the leaches and parasites in the legal “profession”.