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Author: Rob Natelson

Part I: Judicial activism: Here’s a core reason for it you’ve never heard about

Part I: Judicial activism: Here’s a core reason for it you’ve never heard about

Whenever a court issues a highly publicized liberal activist decision, constitutionalists understandably become upset. They cast around for ways to stop this kind of overreaching.

But if you want to devise a viable solution to misconduct, you have to understand the reasons for the misconduct. And constitutionalists almost invariably overlook one of the core reasons. This post discusses that reason. Next week we shall address possible solutions.

Federal judges and state supreme court justices are largely drawn from a group that, from the time they are law students, are trained in a particular view of the law. Its promoters call it “legal realism,” although it is neither particularly legal nor entirely realistic.  Legal realism is sharply at odds with the view of law on which our Constitution is based. Legal realism empowers judges intellectually and socially to subordinate the law to promoting favored social policy.

The Founding Era View

Let’s revert to the Founding Era for a moment: Although the Founders did not think much of the British king or parliament, they deeply admired the English legal system. Over the previous two centuries, the English legal system had evolved from a mere tool of the king into a cluster of institutions with a reputation for independence tempered by incorruptible respect for the law.

In England and 18th century America, judging was a learned, but fundamentally humble, enterprise. When interpreting statutes and other documents, judges did their best to follow the “intent of the makers.” When a document didn’t control the case, judges explored other documents, surrounding circumstances,  earlier court decisions, customs, and the principles of natural law. From these they deduced as well as they could the correct rule for the case at hand.

Deducing the correct rule is similar to developing a scientific hypothesis. In science, you examine the reliable data available and try to infer a workable hypothesis to describe or explain them. In the Anglo-American common law system, a judge examined reliable data presented to the court—testimony, documents, other evidence, earlier cases, prevailing custom, rules of interpretation, and so forth—to extrapolate a general principle applicable to the controversy before him.

Among those reflecting these values were two leading Founders who also were outstanding lawyers, Alexander Hamilton and John Marshall. (The real John Marshall, not the liberal activist some law-school text writers make him out to be.)

In those days, law students were educated primarily by serving as “clerks” in the offices of experienced and successful attorneys. They also attended numerous court sessions. Their education was very practical. And each generation of judges and lawyers passed judicial values onto the next generation. (Some English and American law students attended London’s Inns of Court, where they absorbed the same ideals.)

The Founders erected the American legal system to operate in the context of Anglo-American judicial values. The rules placed expressly or implicitly in the Constitution—life tenure, jurisdiction, judicial review, and so forth—were designed to operate in that context.

However, the context changed.

Enter the Ivory Tower Philosophers

In the late 19th and 20th centuries the focus of legal education began to move away from lawyers’ offices and the Inns of Court to the new law schools. As time went on, more and more aspiring students attended law schools rather than clerked for senior attorneys. Significantly, more and more law schools became located on university campuses. They became influenced by university trends in the liberal arts and social sciences. Many law schools became government institutions.

The problems afflicting liberal arts universities, especially government universities, began to corrupt the law schools. Even though legal education is really just a fancy form of vocational education, committees hiring faculty ignored how much practical experience an aspiring professor might have. Quite the contrary, when I was in academia (1985-2010) they tended to discriminate against experienced practitioners. Hires were made for academic credentials and political reasons instead. Faculty slavishly followed the lead of trend-setter institutions like Harvard and Yale. So did professional associations. (Attend an annual meeting of the Association of American Law Schools, and you’ll see what I mean.)

“Legal realism” was one of the trends. Beginning in the late 19th and 20th centuries, writers such as Oliver Wendell Holmes, Jr., at Harvard and Karl Lllewellyn at Yale, taught that law  “derives from prevailing social interests and public policy.” This quickly caught on among legal academics. Further, the idea that law was a creation of social interests and public policy suggested judges could improve the world by revising the law to fit their favored social interests and promote “good” public policy.

The PR Coup: Calling an Ivory Tower Theory “Legal Realism”

The favored position in the media enjoyed by the Harvard-Yale crowd enabled them to carry out a public relations coup (compare here and here). They called their ivory tower/central planning view of jurisprudence “legal realism.” They tarred the earlier, more practical view, with the insulting phrase “legal formalism.

Now, it is true that there are many versions of legal realism, from Critical Legal Studies on the far left to the Law and Economics group that, within legal academia, passes for “conservative.” (It’s actually utilitarian.) But all legal realists share the idea that law should be used as an instrument of social policy and that judges ought to play a role in so using it.

My Experience at Cornell Law School: Legal Realism on Steroids

A good example is my experience as a law student at Cornell University. My contracts professor told us to think of legal rules not as rules, but as mere instruments for obtaining the desired result (“Tools, not rules,” he would say.) My torts professor spent a lot of time telling us that personal injury law should be rewritten to redistribute wealth. My constitutional law professor (a centrist who at Cornell was considered conservative) emphasized over and over again the need to “balance” policy factors in constitutional clauses where the framers and ratifiers already had done the balancing. Almost all professors asked us to judge case results by whether and to what extent they served “good public policy.”

So when Justice Sonya Sotomayor, while still was a federal appeals judge, casually told a law school audience that federal appeals courts make law, she was repeating modern academic orthodoxy. That is also why Richard Posner, a key American promoter of the law and economics school and now a federal appeals judge, says a judge ought to, essentially, decide the case first and look at legal materials later.

(Additional note: At the University of Montana, where I spent most of my teaching years, the orthodoxy was pushed right up front. All entering students were funneled into introductory lectures in which a professor informed them that natural law and formalism were “simple minded” and legal realism and its Critical Legal Studies subdivision were more “sophisticated.”)

Legal Realism is Neither Legal Nor Realistic

I figured out early that legal realism is not, strictly speaking, “legal.” Instead of being built on established legal principles, it rests on arbitrary factors such as the political views of the judge or how he thinks about matters not before the court. For example, suppose Mr. Seller contracts to sell a house to Ms. Buyer. Before the the deal closes, the place burns down though no fault of Mr. Seller. Should Ms. Buyer be required to purchase the house? The traditional common law rule was “yes.” A judge may not like that outcome, but he really has no way of knowing what the social results will be if he tries to change it. Traditional judges leave such issues to the legislature. Legal realist judges follow their personal guesses. In fact, a feminist-realist judge might even decide the case for Ms. Buyer because she is a woman, and therefore was not sufficiently “empowered” to negotiate her contact. This is not law. It is guesswork and political favoritism.

I eventually learned that legal realism is not particularly “realistic,” either.

Most people who eventually become law professors, if they practice law at all, do so for a few years in elite firms, government, or politically-driven legal aid shops. Fortunately, I turned down a Wall Street job and chose to enter grass-roots (“Main Street”) law practice. And I stayed there a fairly long time (10-12 years, depending on how you count) before returning to academia.

While in practice I worked with middle- and working-class Americans on ordinary cases, and in state trial courts. Over the years, I represented personal injury clients, a union local, and a municipality. I handled DUIs, divorces, and other lesser litigation. I represented real estate developers and people who purchased from, or sued, real estate developers. I wrote wills and contacts, and counseled small business people and non-profit associations.

What I learned was that for Main Street law, the “public policy” fixation was nonsense. At the grass roots level, judges didn’t purport to make policy guesses.  Instead, they did their best to deduce and apply the law. After I became a professor and had confirmed my observations by study of thousands of cases on many different legal subjects, I wrote an essay explaining my observations. The essay showed how jurisprudence really works for most people most of the time.

But our problem is not how the law works most of the time, but how it works in federal tribunals and in the state supreme courts. That is where judicial activism occurs.

Next week: How do we respond to legal realism’s corruption of our judicial system?

Drafting a Balanced Budget Amendment: It’s tougher than you might think

Drafting a Balanced Budget Amendment: It’s tougher than you might think

The idea of a balanced budget amendment to the U.S. Constitution (BBA) has been highly popular since the 1970s. Yet Congress has failed to propose a BBA, and the number of states applying for a proposing convention remains stuck below the necessary 34. Meanwhile, the federal debt continues to soar out of control.

Among the tactics employed by Article V skeptics is to highlight the difficulties in drafting an effective BBA. For once they have a point. Here are some of the defects afflicting present drafts, including some reproduced in Article V legislative applications:

  • Relying on congressional supermajorities (two thirds, three fourths, 60%) whose practical effect will vary in unknown ways between the U.S. House and U.S. Senate.
  • Unwittingly validating federal spending programs that, objectively considered, are currently unconstitutional.
  • Introducing into the Constitution new words and phrases (e.g., “outlays,” “estimated revenue”), either undefined or poorly defined.
  • Relying on budgetary formulae shown to be ineffective at the state level.
  • Including terms (e.g., two-thirds vote to raise taxes) pleasing to potential donors, but rendering impossible the broad coalition necessary to ratify.
  • Relying unduly on the courts for enforcement.

In addition, some of the drafts are simply too long to be accepted as amendments. The longest constitutional change ever adopted was the Fourteenth Amendment—containing 423 words—but some BBA drafts are far longer. In addition, some drafts contain unclear language. Consider this example appearing in a few state applications:

Total outlays of the government of the United States shall not exceed total receipts of the government of the United States at any point in time unless [a condition is met].

What does it mean to say that total outlays cannot exceed total receipts “at any point in time?” Does that mean that the inflow of dollars must always exceed the simultaneous outflow? Maybe. But if so, it disregards the realities of government finance: tax revenue arrives in chunks (as on April 15), while spending is more constant over the course of the year. Or does it mean that at any “point in time” all expenditures ever made, from 1789 to date, cannot exceed all funds received? But that would render existing debt unconstitutional. And what is a “point in time,” anyway? A day? hour? nanosecond? As Kurt Vonnegut might have quipped, “So it goes.”

Of course, it is one thing to criticize, but another to try to craft something better. A new Heartland Institute Policy Brief includes my own draft, with accompanying explanations. I know it is imperfect, and neither my draft nor anyone else’s should be included in state legislative applications. (The proposing convention has the constitutional prerogative of writing the amendment.) My goal is merely to “reset” public discussion to, perhaps, a higher level, and encourage others to offer proposals better than mine.

You can get the Policy Brief here.

If you want to win a Supreme Court case, it helps to play to “progressive” values

If you want to win a Supreme Court case, it helps to play to “progressive” values

This article originally appeared in The Hill.

Two new Supreme Court decisions illustrate the point: Even conservative litigants should argue their cases so as to genuflect before the legal elite’s “progressive” faith.

Courts are supposed to apply the law neutrally. When construing the Constitution, this means they should apply the original, actual meaning of the document. Yet the Supreme Court often decides cases in ways divorced from that meaning. So it is easier to win your case if your argument accords with the social and cultural values favored among the contemporary elite.

At the turn of the last century, when most of America’s opinion makers subscribed to free market economics, you had a reasonable chance of winning a constitutional challenge against a business regulation. During the late 1930s and the 1940s, when fashions favored collectivism, it became almost impossible to do so. In 2015, cultural attitudes induced the Supreme Court to rule—on virtually no evidence other than the Zeitgeist itself—that the Constitution requires states to recognize same-sex civil marriage.

Both Murr v. Wisconsin and Trinity Lutheran Church v. Comer are further illustrations. The Murrs contended that state-authorized zoning regulations had deprived them of property rights without the compensation required by the Fifth Amendment.  Trinity Lutheran Church claimed the state had denied the church access to a grant program in violation of the First Amendment.

If the Supreme Court had applied the Constitution’s original meaning, both the Murrs and Trinity Church would have lost. Contrary to common illusion, the Constitution’s original meaning does not always mandate results conservatives (or liberals) like.

Yet the Court (Justice Thomas excepted) pretty much ignored the original meaning. It ruled for the state in Murr but against the state in Trinity Lutheran.

One reason the Murrs lost is they made a legal blunder by kicking away a “grandfather clause” that would have protected them. One reason Trinity Lutheran Church won was that it was seeking a government grant “for the children”—that is, to provide a softer surface for a playground.

But if you are considering which cases to bring before the Supreme Court and how to argue them, you can’t overlook this: Attorneys for the church played to the legal elite’s “progressive” values—and won. In fact, they won 7-2, carrying with them two of the most liberal justices.  The Murrs, on the other hand, defied those values. They lost, 5-3, with even the three more “conservative” dissenters agreeing with the result.

The Murrs were in a position any “progressive” would find unsympathetic. They were private landowners (bad). Their land was in an area the state and federal governments deemed environmentally sensitive (worse). They had the cheek to challenge an ordinance that allegedly protected the environment (inexcusable). Their goal was to develop or sell for profit. (Enough said.)

Compare the facts and presentation of Trinity Lutheran:

*          Unlike Murr, the case did not involve purely individual freedom. It involved a kind of “freedom” the Left can better understand: freedom to get a government grant.

*          The grant program was limited to non-profit organizations, of which the plaintiff was one. No filthy profits here!

*          The program served an environmental cause—recycling used tires.

*          It was a government program, funded by a mandatory “fee” (in reality, a tax).

*          Grant applicants received extra points if located in a poverty area.

*          Applicants also got extra points for agreeing to “promote recycling”—i.e, propagate environmental ideology.

*          The grant would help the church comply with federal disability regulations.

*          The playground was not merely for children of church congregants (that would be too “private”). Use “would extend . . . to the local community.”

Observe how many of the Left’s ideological buttons the plaintiff’s lawyers pushed: non-profit, recycling, mandatory government fee, poverty, disabilities, environment—and that interminably-overused mantra: community.

The lesson: Whatever your personal beliefs, if you are taking a case to Washington, D.C., it helps to ensure that your case does not flout—and preferably panders to—the ideology prevalent there.

Congress may control immigration through its “law of nations” power

Congress may control immigration through its “law of nations” power

This article originally appeared in The Hill. A follow-up with more information appears here.

Some pro-immigration activists question whether the federal government has any constitutional power over immigration. “Where,” they ask, “is the word ‘immigration’ among the powers the Constitution grants to Congress?”

This question has embarrassed many who favor restrictions. They have cast around for answers, but by and large, their answers have been unpersuasive. For example, they have argued the Constitution granted implied power to restrict immigration because such power is core to sovereignty. They also claim immigration is within Congress’s authority to govern naturalization and regulate commerce.

There are problems with these answers. As shown by the wording of the Tenth Amendment (reserving unlisted powers to the states and people), the founders rejected the idea of implied sovereign powers. They did not see immigration law as merely a part of naturalization law. And they did not think it was “commerce” when a nonmerchant simply walked or rode a horse across an international border.

 

Immigration control advocates are on firmer ground when they highlight the part of the Constitution that reads, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to [1808].”

This provision covered both slaves and free immigrants.

Advocates of immigration limits say this clause would be unnecessary if Congress could not otherwise control movement into the United States. After all, a common guide for reading legal documents was, “The exception proves the rule.”

As I point out in my book, The Original Constitution, both sides are missing something. They are missing the clause in the Constitution giving Congress “Power … To define and punish … Offenses against the Law of Nations.”

“The law of nations” was the usual 18th-century term for international law. It included standards of conduct among nations. But it also encompassed some rules within national boundaries. A power to “define and punish” an “offense against the law of nations” included protecting foreign ambassadors against interference, protecting safe-conduct passes — and restricting immigration.

Why have so many writers — including some constitutional law professors — missed this? One reason is that 18th-century legal terms and categories were different from those we use today. For example, a modern law book might feature a heading for “immigration law.” But in William Blackstone’s “Commentaries,” the English book that served as America’s most popular legal treatise, there was no such heading.

Instead, Blackstone addressed the topic in his chapter on the British king’s prerogative powers. When discussing safe-conduct passes, Blackstone observed that without them “by the law of nations no member of one society has a right to intrude into another … [I]t is left in the power of all states, to take such measures about the admission of strangers, as they deem convenient.”

Blackstone relied partly on the writings of Samuel Von Puffendorf, a German international law scholar. Puffendorf’s writings were familiar to Americans. Even more popular were the writings of the Swiss lawyer, Emer de Vattel. His famous book on international law did not have a topic entitled “immigration.” But it did discuss both immigration and emigration as part of the law of nations. For example, Vattel wrote that in “Switzerland and the neighboring countries … the law of nations … did not permit a state to receive the subjects of another state into the number of its citizens.”

This should teach us two civic lessons. First, the Constitution did grant the federal government authority over immigration. Second, to understand the Constitution you have to do more than read the document. Because it was written mostly by lawyers for an 18th-century public well educated in legal matters, to fully understand the Constitution we have to know some fundamentals of 18th-century law.

The last convention of states ever held? It Centered on the Upper Colorado River

The last convention of states ever held? It Centered on the Upper Colorado River

I recently obtained the records of what may be the last convention of states ever held—records demonstrating that states were meeting in convention well into the mid 20th century.

A “convention of states” as the American Founders and subsequent generations understood the term, is a temporary conclave of legislatively-authorized representatives from three or more states. It is both a diplomatic gathering—the representatives or “commissioners” are essentially ambassadors from their respective legislatures—and a problem-solving task force. Sometimes representatives of sovereignties other than states, such as Indian tribes or the federal government (or, in colonial times, the British crown), have been invited to participate. Conventions of states also have been called “committees of states,” “congresses,” and “commissions.”

Conventions of states, both national (“general”) and regional (“partial”), have met for many different purposes: to plan common defense, work out common responses to political challenges, negotiate treaties with Indian tribes, seek and propose solutions to economic problems, propose constitutional amendments, and, on two occasions (Philadelphia in 1787 and Montgomery in 1861) to prepare new constitutions. Only the last two can properly be called constitutional conventions.

In the 20th century, states used them to hammer out western water compacts. I previously reported on the Santa Fe Convention of 1922, formally called the Colorado River Compact Commission. It was the gathering of seven states and a federal commissioner, then-Secretary of Commerce Herbert Hoover.  It negotiated the Colorado River Compact. I also have reported that similar gatherings met to negotiate the Rio Grande River Compact and an abortive North Platte River compact. My latest acquisition is the official record of the convention that negotiated the compact covering the Upper Colorado River —the portion north and east of Lee Ferry, Arizona.

This was a true convention among five states: Arizona, Colorado, New Mexico, Utah, and Wyoming. It met intermittently from July 22, 1946 to August 5, 1949. Commissioners attended from each state. They were not chosen by their legislatures directly, but legislative statutes authorized the appointment of each and gave each his power. At the request of the states, President Truman named a federal representative to participate as well: Harry W. Bashore, formerly Commissioner of the U.S. Bureau of Reclamation.

The group’s assignment was to divide up the waters of the Upper Colorado River among the five states and determine how much each state had to provide to the states of the Lower Colorado River. This was a highly technical task. Accordingly, unlike most conventions (but like the Santa Fe meeting) there was only one commissioner from each state, but each was assisted by a technical staff. In addition, the group created an engineering advisory committee and a legal advisory committee. The technical nature of the job was why the group had to keep adjourning and reassembling: Engineering studies and negotiations over local streams were performed in the interim.

Another interesting variation is that, like the 1922 convention, the Upper Colorado River group met in different cities and towns at different times: Cheyenne, Wyoming; Denver, Colorado; Salt Lake City and Vernal, Utah; and Santa Fe, New Mexico. In addition, it held public hearings in four other towns. In all, there were 41 days of sessions grouped into eleven formal “meetings.” The first eight meetings led to completion of the compact in 1948. The remaining three, held the following year, were short sessions for wrapping up business.

The conclave also gave itself a name, since its authorizing documents didn’t specify one. It called itself the Upper Colorado River Basin Compact Commisssion.

Within those variations, the group operated according to standard convention of states protocols. Specifically:

* The commissioners established their own procedures. Thus, they made it clear that a preliminary meeting that included the state governors did not bind them, and they re-voted on the decisions made at that preliminary meeting.

* Each state had one vote, cast by its commissioner, no matter how many people from each state happened to be present. After briefly considering a unanimity rule (such as the Colorado River Commission adopted but eventually abandoned), the group retained a rule of decision by a majority. However, it strove for unanimity, and generally was successful. The federal representative had no vote.

* The commissioners elected their own officers: As has been typical among interstate conventions the chairman was a commissioner and the secretary was not. Although he could not vote, Mr. Bashore was elected chairman.

* The record reproduces many roll call votes by states, some quite dramatic. The voting usually was open. But the vote on the overall percentages by which states would divide the river water was by secret ballot.

* The commissioners affirmed that they were negotiating by virtue of the states’ reserved sovereign powers, not by virtue of permission of federal law (as President Truman seemed to think). In this respect, the Upper Colorado River Convention was typical—although a gathering held under Article V would derive its authority from the Constitution rather than from reserved sovereign power.

The proceedings the Upper Colorado River Basin Compact Commission are impressive. The commissioners and staff worked very hard. Most people involved were thoughtful and highly qualified. The engineering studies were voluminous.

Also impressive is the recurrence of some important names. A listed adviser was Ralph Carr, who later as governor of Colorado during World War II, won national attention by opposing the Roosevelt administration’s groundless incarceration of Japanese-American citizens. Another listed adviser was Barry M. Goldwater, later U.S. Senator and the 1964 Republican nominee for President.

The compact the convention negotiated was approved by all five states and by Congress. It is still in effect. It created a permanent administrative body called the Upper Colorado River Commission, to whose staff I am grateful for loaning me the convention record.