Magazine | October 29, 2012, Issue

Republics of Conscience

Progressive law schools and the crisis of constitutionalism

In an appearance on Egyptian television in early 2012, Supreme Court justice Ruth Bader Ginsburg lamented the fact that she operated “under a rather old constitution.” She told Egyptians that she wouldn’t “look to the U.S. Constitution if [she] were drafting a constitution in the year 2012,” and that they should rather pay close attention to “all the constitution-writing that has gone on since the end of World War II.” She particularly commended the constitutional documents of South Africa, Canada, and the European Union. The important things about these models, according to Ginsburg, are explicit guarantees of human rights along with independent judiciaries to interpret those guarantees. And of course, she pointed out, they’re new.

She thus expressed the core teaching of progressive jurisprudence: Our Founders’ Constitution is an anachronism, little more than a dusty historical curiosity in the National Archives. Further, constitutional text, tradition, logic, and structure are not terribly important for guaranteeing rights. That job can be done much better by cleverly drafted parchment barriers and powerful judges.

Ginsburg and other progressive jurists didn’t come by such views incidentally. Instead, they imbibed them in the first instance in law schools. For decades, many of America’s best and brightest college students have aspired to attend those law schools — usually the “national” elite schools where progressive jurisprudence was invented and still finds its most sophisticated expression. The effects are even more deleterious in the context of a system that fails spectacularly to provide a civic education to republican citizens. Today’s law students, having been consistently let down by educational institutions at all levels, have no sense of their constitutional fathers’ wisdom. Not having the faith of Daniel, they enter the lion’s den only to be consumed.

Each September, the assumptions and methodologies of law-school curricula are handed down as if from Sinai to tens of thousands of 1Ls. They are readily accepted by the students, who are under enormous pressure to assimilate and adjust to them quickly. Students are told nothing of progressive philosophy’s origins or ultimate purposes, and notice little of its hostility to the Founders’ Constitution. Such lack of awareness is evident even among many law-school faculty members, who act as Moses without self-knowledge, sensible only of the first commandment.

For those with the passion to rule — which describes most bright twentysomethings — such a sensibility is very useful. They see themselves doing God’s work, or something like it, for they do at least know that God is banished from the public square. In his recent book Schools for Misrule, Walter Olson recounts how the dean of one of the nation’s most prestigious law schools routinely greeted incoming students by welcoming them to “the republic of conscience.” Of course, it’s a conscience to be imposed by the cognoscenti, through the mechanism of the courts, on the unwashed masses who still conceive of politics as something to be done the old-fashioned way, i.e., consensually. What the students quickly imbibe in the law schools is uniquely well suited to breaking the constraints imposed by self-government and the Constitution.

The modern law school came into existence largely as an adjunct of progressive ideology. It was to be the training ground for progressives dedicated to overcoming early-20th-century judicial resistance to the political assault on our Constitution of limited and enumerated powers. As with the modern discipline of political science, the modern law school was built around core progressive assumptions: a philosophy of history, a faith in the power of scientific intelligence to smooth the movement of history, and a deep suspicion of existing institutional forms. By the 1920s, leading legal scholars were confident they had discovered a new science of jurisprudence — one that would emphasize evolutionary growth rather than black-letter law or theories of law rooted in the permanent nature of human beings. This melding of social Darwinism and philosophical pragmatism animated the growing legal professoriate to direct its attention to processes, functions, and change more than principles, rules, and continuity. The new approach to the study of law had many manifestations. It defined the aspirations of important legal movements such as sociological jurisprudence and legal realism, which sought to ensure, respectively, that legal interpretation would be informed by social data, and that legal outcomes would be determined by perceived social benefits rather than the strict construction of law. The old-fashioned common lawyer was out, to be replaced by a progressive social engineer with legal training.

#page# An important if not entirely intentional grounding for these developments was the adoption of the now-ubiquitous case method in the late 19th century. This method, first imposed by Christopher Langdell, the dean of Harvard Law School, requires students to concentrate on a large number of primarily appellate decisions, especially those of the Supreme Court, in order to familiarize themselves with the logic of judicial reasoning. Langdell’s view was that legal principles, rules, and procedures are best discerned through study of — and induction from — many individual cases. Each case — as an individual datum — contributed to a new scientific understanding of the law relying on empirical observation rather than unchanging principles.

The spirit of pragmatism and Darwinism has run through the case method since its inception. Advocates of the method claimed that it could reduce jurisprudence to an exact science. It was presented by progressives as a breath of fresh air in comparison with attempts to systematize principles independent of “experience” and teach them in lecture format. Of course, it helped the reformers that they defined “experience” as the goings-on in courts of law. The older method’s concern for transmission of established principles seemed, in the progressive mind, to embrace stasis and even Aristotelian purposes in an era that opened its arms only to pragmatism, progress, and history.

The case method had its early critics, both in the practicing bar and the academy, who saw it as a triumph of method over content and process over doctrine, since it separated legal principles from their roots in the natural law, the old common law, and American constitutionalism broadly conceived. The case method presented law in fragmentary form, without purpose or even existence beyond the distillation of principles from the transitory aims of litigants and their appellate arguments. The belief that constantly changing social “facts” are determinative of legal principles is an almost irresistible conclusion when cases become the only lens through which the common law is viewed. And even more integral to the case method than induction is the notion that the law is what courts say it is.

The case method caught on like wildfire, owing in no small part to the prestige of Harvard and the sense that academic respectability required emulation. Even Columbia — the dominant force in American legal education until the turn of the century, and initially resistant to newfangled approaches — quickly succumbed. Nowadays, the method is so widely practiced that law students cannot imagine that constitutional law might be approached in any other way: for example, by serious study of the words and deeds of the Founders.

The case method isn’t the only thing responsible for ending serious study of the Constitution in American law schools over the past century. It took some decades after the embrace of the case method for the independence of constitutional principles to be directly challenged on the basis that they should be subservient to the requirements of social life, or, for that matter, the preferences of individual judges. This challenge came with the growth throughout the 1920s and 1930s of legal realism, which borrowed from progressive political thought and sociological jurisprudence and melded them into a jurisprudential theory of law suited to the new demands of a 20th-century nation that was of necessity bound to throw off the shackles of its constitutional heritage. As sociological jurisprudence was the analogue to the Progressive era in American politics, so realist theory was the analogue to the New Deal.

By the 1920s, a plethora of disciplines were deemed relevant to law in ways they had not been before. The insights, real or alleged, of all the social sciences were increasingly brought to bear on the legal curriculum. As economic, sociological, psychological, or political circumstances changed, so must the law, and it inevitably did. Curricular revisions and new faculty followed. Casebooks appeared with titles such as “Cases and Materials on X” rather than simply “Cases on X.” For example, Yale Law School in the 1930s added significant social-science material to its library holdings, hired more social scientists for its teaching faculty, and created a joint institute for the study of law and psychology. The sheer number and specialized nature of course offerings and supporting materials increased markedly at the leading realist institutions, driven by an understanding of law as inseparable from social problems — particularly those addressed by the administrative state. Through the 1930s and 1940s, courses in public-law fields, including administrative law, burgeoned, and they continued to grow throughout the postwar period.

#page#These courses promoted a view of law as the problem-solving tool of the new age rather than a set of constraints on human conduct. Law tended to be seen as a means of social control and of dealing with corporate groups, which were to have their interests harmonized by elite mechanism rather than spontaneous activities in a large republic. Nowhere was this clearer than in the development of the field of labor law during the 1920s. The move from “constitutional” law to “public” law in the law schools followed, paralleling the progressive mind’s shift from constitutionalism to the administrative state and the new emphasis on regulatory and entitlement politics in the regime as a whole.

Whatever the theoretical roots or disciplinary orientations of the realists, all saw the Constitution as a fundamentally flawed document and decried any efforts to interpret it on its own terms. Statutory law, and even more the Constitution, was seen as an epiphenomenon of deep class biases and social forces unrelated to principles of right or justice. At the same time, it was assumed the best and brightest could extract themselves from the influence of these social phenomena that swept others along like tiny corks on a great river. Given a clear-eyed view of what law “really” is, along with sympathetic legislatures, the right kinds of sociological arguments, and, eventually, a less conservative judiciary, they could put themselves in the vanguard of history. Healthy evolution always lay just over the horizon for most of the realists, as it had for the earlier advocates of sociological jurisprudence.

The relationship between legal ideas and legal practice was central. In 1921, while a judge on the New York Court of Appeals, Benjamin Cardozo was arguing publicly and theoretically, in his Storrs Lectures at Yale, for the centrality of sociological jurisprudence to the law. As Justice Oliver Wendell Holmes reduced law to questions of the management of social forces according to personal and class beliefs, academics worked out theories of the idiosyncratic role of judges. While Louis Brandeis concentrated on the role of social needs in deciding cases, Dean Roscoe Pound at Harvard formulated the same ideas in theory, writing that “the sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law” and a movement away from “assumed first principles.”

By the time the New Deal hit Washington, there was a new sense of professionalism among law teachers, marked by a specialized knowledge of the new science of jurisprudence. The creation of the Association of American Law Schools at the dawn of the 20th century punctuated the importance of professionalism. Even today, the AALS website reminds students that lawyers once entered legal practice without — gasp — having gone to law school. The AALS did much to elevate the “educated” lawyer over the “trained” practitioner of yore, a key difference being the former’s knowledge of the latest trends in historicist jurisprudence.

As legal education through the 20th century transformed itself from a system of rules to be learned into principles or predictions to be gleaned from cases, and then into a vehicle for social change, American lawyers saw themselves as the facilitators of change and the formulators of public policy. Policymaking is always and everywhere a normative endeavor. It was a small step from a concern with policy to a concern with “values,” which quickly made their way into the law-school curriculum, particularly at elite institutions. This occurred largely in what is seen as the “post-realist” period commencing in the 1960s, a period better understood as an inevitable outgrowth of realism, or perhaps a realism that is simply clearer about its purposes.

#page#Through this period and beyond, the case method persisted, but its function has come to be understood in an even more radicalized light. The inductive search for principles has fully given way to the search for strategies — rooted in various social-science disciplines — for winning policy outcomes. The “values” that guide the study and application of law come from outside the law. Law and constitutionalism itself are not to be revered for their reflection of eternal truths or their embodiment of the insights of the wise, but for what policy victories they can deliver to a variety of hungry constituencies.

Realism of one form or another, informed by a strong sense of evolution and the necessity of forward historical motion, still defines much of the curriculum and intellectual categories within the contemporary law school, as well as the thinking of important constitutional actors such as Supreme Court justices. The intellectual assumptions of these jurisprudential progressives are often without anchor, floating on an ever-changing river; hence the inclination of members of the Supreme Court to look to other, more advanced lands for guidance.

Malcolm Muggeridge long ago described early progressive intellectuals as “beating a path between Harvard and Princeton, and Washington D.C.; swarming like migrant birds from the London School of Economics, Oxford and Cambridge into Whitehall.” These were “scholars, philosophers, artists, scientists and the like; the favoured children of a troubled age. Held in respect as being sages who know all the answers; sought after by governments and international agencies; holding forth in the press and on the air.” Nowadays, in America at least, these are our lawyers. Our overextended executive branch and sclerotic bureaucracies, each claiming in progressive fashion to be all things to all people, are increasingly capable of nothing. They have been reduced to lumbering beasts exhibiting only survival instincts. Furthermore, while the early progressives concentrated on expanding the administrative state and its list of clients for the purposes of economic engineering, today’s progressives are far more enchanted by larger-scale social engineering best implemented through the prerogatives of the judicial branch. Progressive change is to be effected in courts of what now can only loosely be termed “law.”

And so it is that the chief justice of the United States, schooled in the best “conservative” principles of today’s legally educated elites, could in good conscience declare constitutional a federal tax unlinked to any enumerated power that the Founders would have recognized. Careful reflection on the text and tradition of the Founders’ Constitution in its establishment of the national taxing power “to pay the Debts and provide for the common Defence and general Welfare of the United States” might have led him to decide otherwise.

This autumn, as every autumn, thousands of America’s most gifted students sit shell-shocked, enduring their first semester in the progressive academy we know as the law school. And even those among them who sense there’s something amiss will be hard pressed to say exactly what it is.

– Mr. Watson is the Philip M. McKenna Professor of Politics at Saint Vincent College in Latrobe, Pa. He is the author or editor of many books, including Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence.

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