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from other intellectual disciplines in that legal scholarship is published mainly in student-edited law reviews, not peer-reviewed journals.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.