229 “A Country I Do Not Recognize”

In his dissent from a 1996 Supreme Court decision, Justice Antonin Scalia lamented:  “‘Day by day, case by case, [the Supreme Court] is busy designing a Constitution for a country I do not recognize’” (p. xi).  Robert H. Bork, one of his generation’s finest juridical minds, made Scalia’s lament the title of a collection of essays he edited—“A Country I Do Not Recognize”:  The Legal Assault on American Values (Stanford, CA:  Hoover Institution Press, c. 2005)—setting forth reasons for alarm regarding this nation’s trajectory.  Summing up its message, Bork says:  “There exists a fundamental contradiction between America’s most basic ordinance, its constitutional law, and the values by which Americans have lived and wish to continue to live” (p. ix).  This contradiction results from three “developments.  First, much constitutional law bears little or no relation to the Constitution.  Second, the Supreme Court’s departures from the Constitution are driven by ‘elites’ against the express wishes of a majority of the public.  The tendency of elite domination, moreover, is to press America ever more steadily toward the cultural left.  Finally, though this book concentrates on the role of judges, who constitute the most powerful single force in producing these effects, politicians and bureaucrats share a share of the responsibility” (p. ix).  It’s preeminently the Supreme Court, however, which has struck “at the basic institutions [e.g. private property; individual liberty; marriage; family; religion] that have undergirded the moral life of American society for almost four hundred years and of the West for millennia” (p. x).  So it receives the majority of attention in these essays, three of which I’ll summarize.  

Lino A. Graglia, a law professor at the University of Texas, assails “Constitutional Law without the Constitution:  The Supreme Court’s Remaking of America,” arguing that the Constitution no longer serves “as a guarantor of basic rights” but has instead “been made the means of depriving us of our most essential right, the right of self-government” (p. 2).  Judges issue opinions rooted in their own proclivities rather than in the written text in order to advance their privileged vision of an enlightened society.  Thus contraception, abortion, sodomy etc. are branded constitutional “rights” mysteriously resident in “penumbras, formed by emanations” from the Bill of Rights.  This has been done under the highly dubious rubric of judicial review, amplified by an illicit expansion of a single sentence in the 14th Amendment (now “our second Constitution”), rationalizing the judicial activism that makes judges legislators.  Consequently:  “In the guise of enforcing the Constitution, the Court faithfully enacted the political program of the liberal cultural elite, working a thoroughgoing revolution in American law and life” (p. 32).  

Reflecting its commitment to the liberal cultural elite is the Court’s commitment to abortion-on-demand.  Elevating the killing of innocent human beings to a constitutionally protected right vividly illustrates its dedication to a Nietzschean  “transvaluation of all values.”  Thus there is, says Gary L. McDowell, a professor at the University of Richmond, “The Perverse Paradox of Privacy,” prompting Justice Byron White to insist in his dissent from Roe that it was “nothing more than ‘an exercise of raw judicial power . . . an improvident and extravagant exercise of the power of judicial review’” (p. 75).  McDowell finds the core of the justices’ philosophical commitment in the oft-cited statement of Justice Anthony Kennedy in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), who found  justification for “‘the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’” (p. 59).  Discerning no limits to individual freedom, the justices in Casey “undertook to establish an understanding of judicial power and constitutional interpretation far more radical than what any earlier court had ever suggested” (p. 72) and in the process revealed an “utter disdain” for “the idea of popular government” (p. 73).  

Terry Eastland, editor of The Weekly Standard, shows, in “A Court Tilting against Religious Liberty,” how consistently the Supreme Court has misconstrued the First Amendment’s provisions, doing “serious damage to the country” (p. 86).  Launching this process in a landmark decision, Everson v. Board of Education (1947), Justice Hugo Black culled a phrase from one of Thomas Jefferson’s letters regarding the “wall of separation” between the state and religion, and subsequent decisions moved to ban religion from public life.  Consequently the courts prohibit even moments of silence in public schools, student prayers at commencements and football games, Christmas displays in court houses, etc.  In Stone v. Graham (1980), the Court banned the posting of the Commandments in public schools, concerned that “students might read, even ‘meditate upon, perhaps . . . venerate and obey’ the Ten Commandments” (p. 95).  These decisions clearly repudiate the positions of Founding Fathers such as George Washington, who declared, in his Farewell Address, “that religion and morality are ‘indispensable’ to ‘political prosperity’ and cautioned against indulging ‘the supposition that morality can be maintained without religion’” (p. 111).  Clearly the Court finds Washington’s position out-dated, and we are, Eastland concludes, “embarked in a new direction, destination unknown” (p. 111).  

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In The Dirty Dozen:  How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (Washington, D.C.:  Cato Institute, c. 2009) Robert A. Levy and William Mellor carefully critique judicial decrees that have reconfigured our republic.  As Richard Epstein (a distinguished law professor at the University of Chicago) notes, “the Court has too often taken the plain wording of the Constitution and interpreted it to mean exactly the opposite of what the Founding Fathers intended.  By that process the Court profoundly altered the American legal, political, and economic landscape” (p. xxv).  This is especially evident in the Court’s taking the Constitution’s General Welfare Clause, which limits government power, to justify its virtually limitless expansion.   Consequently, all realms of life may be regulated by assorted commissars.  “Whether it is political speech, economic liberties, property rights, welfare, racial preferences, gun owners’ rights, or imprisonment without charge, the U.S. Supreme Court has behaved in a manner that would have stunned , mystified, and outraged our Founding Fathers” (p. 2).  

As staunch advocates of limited government, Levy and Mellor insist “that programs such as Social Security, which collect money from some taxpayers and redistribute the money to other taxpayers, are unconstitutional” (p. 19).  This results from misconstruing the General Welfare Clause of the Constitution (Article I, Section 8).  Though presented to the public as “personal savings for old age,” Social Security “is a Ponzi scheme that redistributes money from workers to retirees.  Like other Ponzi schemes it works only as long as current participants are willing to rely for their benefits on an ever-increasing flow of money from future participants” (p. 21).  Upholding the program in Helvering v. Davis (1937), the Court (wilting in the face of FDR’s threat to pack the Court) took to interpreting the Constitution as a “living document” and opened “the floodgates for the redistributive state” (p. 24), taking money from one group and giving it to another and effectively re-writing the nation’s founding document.  

This is glaringly evident in the Court’s expansion of federal powers under the guise of rightly enforcing the Interstate Commerce Clause (Article I, Section 8, Clause 3), “the primary source of federal power” (p. 45).  Beginning in 1937, in National Labor Relations Board v. Jones & Laughlin Steel Corp., the Court quickly began intruding into virtually “all manner of human conduct,” including “divorce, child custody, driver’s licenses, local zoning, public schools” (p. 40).  For example, a subsistence farmer in Ohio, selling a small bit of wheat within the state, was told “how much wheat he could grow on his own farm for his own use” (p. 44).  If (to bring the issue up to date) under Obamacare, individuals are forced to purchase health insurance it will be under the assumed power of the commerce clause.  

Though any legitimate rule of law upholds contracts and secures property rights, FDR’s Court—justifying decisions on the basis of economic emergency—began to systematically dissolve “the rights of property owners as if they never existed” (p. 51), following the lead of Chief Justice Charles Evan Hughes, who said:  “‘We are under a Constitution, but the Constitution is what the judges say it is’” (p. 51).  Consequently, financially distressed debtors were freed from contractual obligations such as mortgages, upholding a Minnesota Mortgage Moratorium act in 1934.  “The resultant moral and legal dilemma had been crystallized pithily by Marcus Tullius Cicero nearly two thousand years earlier.  What is the meaning, Cicero had asked, of an ‘abolition of debts, except that you buy a farm with my money; that you have the farm, and I have not my money’”? (p. 54).  This is precisely what took place when FDR took the nation off the gold standard at the inception of the New Deal.     

Further devaluing the Constitution are unelected and unaccountable bureaucrats who assume lawmaking powers.  Far more than Congress, these federal agencies have devised thousands of rules and regulations shaping our lives.  “Virtually no human activity is excempt from the federal regulatory juggernaut” (p. 69).  Once again the New Deal Court helped transform the law in accord with FDR’s agenda and “not a single post-New Deal statutory program has been invalidated as an unconstitutional delegation of  legislative power to the executive branch” (p. 72).  Legislation (whether dealing with endangered species or racial quotas or food or drugs or automobiles) apparently designed to deal with a few issues takes on a complicated life of its own as various agencies implement and expand it.  

Having looked at decisions expanding governmental powers, Levy and Mellor, in the second section of the book, turn to judicial decisions “eroding freedom.”  Campaign finance laws, when upheld by the courts, deny the very free speech secured by the First Amendment.  Gun control laws, when upheld, dissolve the Second Amendment.  Laws designed to protect national security (e.g. internment camps for Japanese-Americans during WWII) frequently compromise the civil liberties guaranteed by the Constitution.  Confiscatory acts passed during the Civil War, upheld by the Supreme Court, “worked ‘a revolution in forfeiture law that persists to this day’” (p. 144), justifying the seizure of criminals’ property.  Though taking property through the power of eminent domain and giving it to favored parties (e.g. developers promising tax revenues) violates the Fifth Amendment, it has gained Supreme Court sanction.  Earning a living through such simple tasks as braiding hair now faces licensing laws making it egregiously difficult and expensive—defying the clear intent of the Ninth Amendment, which insisted “that only those rights specifically enumerated in the Constitution” be “judicially enforced” (p. 193).  Racial preferences in university admissions are now justified as in accord with the 14th Amendment, which clearly forbids such, insisting “that every individual is entitled to equal protection of the law, regardless of skin color” (p. 201).  

In view of all this it’s clear that the Supreme Court has “rewritten major parts of our Constitution, including the General Welfare Clause, Commerce Clause, Contracts Clause, Non-Delegation Doctrine, and the First, Second, Fourth, fifth, and fourteenth Amendments” (p. 215).  Apologists for this endeavor argue we must understand it as a healthy implementation of a “living Constitution.”  So The Dirty Dozen was written to encourage a thoughtful and persuasive counteraction on the part of “textualists” such as Justice Scalia, who construe the text “leniently” without severing all meaningful connection to it.  

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In Schools for Misrule:  Legal Academia and an Overlawyered America (New York:  Encounter Books, c. 2011), Walter Olson discovers what he believes to be the real source of what Raoul Berger (one of this century’s most distinguished constitutional scholars) described as Government by Judiciary.  Berger believed “that the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken from the people control of their own destiny, an awesome exercise of power.”  A coup de etat—a revolution led by Earl Warren in the 1950’s—has transformed this nation.  Though the Warren Court initially requested briefs detailing the amendment’s “original intent,” it brushed aside demonstrable historical facts and replaced history with sociology.  More disturbingly, as Alfred H. Kelly, wrote:  “‘The present use of history by the Court is a Marxist-type perversion of the relation between truth and utility.  It assumes that history can be written to serve the interests of libertarian idealism’” (p. 342).   This is precisely what President George Washington envisioned and decried in his Farewell Address:  “If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.”   

This destructive usurpation has been led by law schools which channeled the ethos of the ‘60s into the nation’s institutions through legal theories such  as “Critical Race Theory,” legal feminism, animal rights, social justice, international law, etc.  “The problem, this book will argue,” Olson says, “is not just that law schools generate so many bad ideas—mistaken and benighted ideas, impractical and socially destructive ideas—but that these ideas follow a predictable pattern.  They confer power on legal intellectuals and their allies—at least the power to prescribe, often the power to litigate.  The movement that results—whether couched as public interest law, as minority empowerment law, or as international human rights law—is in fact a bid for power, whether naked or clearly disguised” (pp. 10-11).     

The conviction that law schools should play a prominent part in shaping the society shines forth in comments recently made by Dean Harold Koh when he welcomed incoming students to Yale Law School, saying:  “‘there is only one Yale Law School and it is us.  We are not just a law school of professional excellence, we are an intellectual community of high moral purpose.’”  Mastering the skills of drafting contracts and arguing cases is less lofty than crafting the nation’s polity.  More portentously, he welcomed them as “Citizens of the republic of conscience’” (p. 14), apparently endowed with the rights of the enlightened to chart the nation’s course.  When studying constitutional law, their mission is clear, Olson concludes, for “‘every casebook, treatise, and handbook used to teach constitutional law in American law schools is the product of Democrats writing from Democratic perspectives’” (p. 16).  

This Democrat bias was embedded in law schools as Progressives in the ‘30s made them bastions of support for FDR and the New Deal, champions of central planning and social justice.  Lawyers (and most especially law school professors) were to be policy-makers, following the injunction of Yale dean Charles Clark, who said that “‘the corporation lawyer of the past decade must give way to the public counsel of the next’” (p. 41).  Thus at Yale in the ‘50s students were no longer eve required to study property law, heretofore considered “a cornerstone of the bar exam.”  They could master the subject on their own, it seems, while devoting class time to “truly stimulating and interesting things” that might change the world.  With each passing decade law professors ventured forth into all sorts of fascinating philosophies, most recently deconstructionism, leading Harvard’s Mary Ann Glendon to decry what she saw “‘a growing disdain for the practical aspects of law, a zany passion for novelty, a confusion of advocacy with scholarship, and a mistrust of majoritarian institutions’” (p. 49).  

Product liability and class action lawsuits exemplify modern law school convictions.  As companies have become liable in court for injuries (including “emotional distress”) suffered rather than negligence demonstrated in manufacturing a defective product, a financial cornucopia has opened for trial lawyers.  A pivotal decision, Greenman v. Yuba Power (1963), written by Roger Traynor, reflected lessons on social engineering he’d learned from Berkeley law dean William Prosser, the celebrated author of Prosser on Torts.  Professor Prosser turned the legal realm of torts into a “thrilling ‘battlefield of social theory’; laissez-faire versus progressivism, individual versus collective responsibility” (p. 58).  He particularly discounted “the venerable old defense known as assumption of risk, which worked to disfavor lawsuits by persons who had chosen to undertake hazardous activities” and insisted that skiers or iPod owners who understood potential risks could still sue for any damages suffered therein.  Most dramatically, class action suits against the tobacco industry have shoveled billions of dollars into lawyers’ coffers.  

Professor Prosser’s commitment to progressivism reechoes throughout the nation’s law schools, whose professors serve as advocates for social change, frequently appearing as litigators in trials and lobbyists for legislation.  (Harvard’s Alan Dershowitz, for example, claimed he’d been promised, but not paid, $34 million for working 118 hours, helping a team of lawyers in a tobacco case!)  They support, and help establish and staff legal clinics (e.g. the Mexican American Legal Defense and Education Fund; the Women’s Rights Project and National Women’s Law center; the Environmental Defense Fund) devoted to “public interest law.”  Frequently funded by powerful foundations such as Ford and Carnegie, these organizations seek to advance progressive causes (welfare rights; abortion rights; labor unions) through the courts.  Ironically, they rarely provide pro bono services for needy individuals, preferring to seize upon individual cases that advance their commitments to social change.   

The social change envisioned by students in the ‘60s marked a “bestselling 1970 daydream of liberation, The Greening of America” (p. 118) by Yale professor Charles Reich.  Six years earlier, however, he wrote a less celebrated but enormously more influential law review article entitled “The New Property,” wherein he argued that an expansive government, by financially subsidizing millions of people, endowed them with legal rights to these benefits.  Once granted, the benefits become entitlements that could not be cancelled—they must be considered “rights.”  Soon “the article came to stand for an even broader proposition:  due process aside, courts should start enforcing more positive rights to have government do things on one’s behalf, as distinct from negative rights to be left alone by it” (p. 122).  In short order the Supreme Court embraced Reich’s notion, discovering “an entirely new Constitutional right not to be cut off from welfare payments without notice and a more than perfunctory hearing” (p. 121).   Consequently, public interest lawyers successfully won cases “extending welfare to college students, . . . forcing counties to participate in the federal food stamp program, and generally compelling local governments to make the rules of that program more generous, more uniform, and more centrally coordinated” (p. 121).  

Government control—ever benevolent, of course—almost always finds advocates in the law schools.   Ultimate world government—implemented through international law—is further desired as “the crowing and ultimate expression of the legal academy’s longstanding taste for access to centralized power” (p. 234).    Reining in the professors, restoring the law schools to their rightfully restricted role in society, would be an important step, Olson says, to preserve our freedom as Americans.

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