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What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 4th in a Series on the Electoral College

What Does the Founding Era Evidence Say About How Presidential Electors Must Vote? – 4th in a Series on the Electoral College

As mentioned in the first installment of this series, litigation has erupted in Colorado over whether a state may dictate the vote of a presidential elector and remove that elector if he opts to vote otherwise. Similarly, a Washington State lawsuit tests a state law that, while recognizing the validity of a vote contrary to an earlier pledge, imposes a $1000 fine on an elector who casts such a vote.

In 1952 the Supreme Court upheld an Alabama law requiring a person seeking office as an elector to pledge to support the nominee of his party.

Laws limiting the discretion of electors are justified as part of the state’s power to “appoint” electors. This justification is not airtight, however, because the appointment of an officer and directing his or her vote are not quite the same thing. For example, the people have power to appoint (elect) members of Congress and other officials. The people are right to expect successful candidates to honor their promises within practical limits. But the people have no constitutional power to direct congressional votes.

Consider also the rules under which Congress, state legislatures, and conventions exercise their constitutional powers in the amendment process. States have repeatedly passed laws attempting to control the actions of those assemblies, but the courts have repeatedly struck them down. The courts’ holdings are consistent with the founders’ understanding of how legislatures and conventions worked: Lawmakers could follow their consciences and convention delegates enjoyed significant discretion within the scope of the convention call. Indeed, if some delegates who had run for their state ratifying conventions as antifederalists had not voted for the Constitution once compromise had been reached, the Constitution would not have been ratified.

As explained below, the evidence suggests that the scope of a presidential elector’s constitutional discretion is even greater than that of a convention delegate.

Before proceeding further, however, let’s dispose of one issue. Some see significance in the fact that the original Constitution was ratified before the rise of national party voting, while the 12th amendment was approved in 1804 after parties became the norm. They suggest, therefore, that the meaning and expectations for elector voting under the 12th amendment might be different from those under the original Constitution.

It is, of course, true that the 12th amendment changed some aspects of the electoral system. But the language relevant to elector discretion charged hardly at all.

The original Constitution provided:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.

The 12th amendment did not alter the wording of the first part of this selection, and its replacement for the second part was almost identical to the original: “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.”

This near-identity cuts against the idea that there was less elector discretion under the 12th amendment than under the original Constitution. Standard rules of legal interpretation hold that when language does not change, meaning does not change. Party pressures might discipline electors more after 1804 than before, but electors had no more legal obligation to be disciplined after 1804 than before.

It follows that when construing the present constitutional language, we are fully justified in relying on the usual sources employed in construing the original Constitution.

One source of that kind is how contemporaries normally understood words and phrases used in the text.

In both the original and 12th amendment versions, the electors were to vote by ballot. To the founding generation, this invariably meant secret ballot. The whole point of a secret ballot is to hide the elector’s choice so to ensure that choice is free. But free choice is inconsistent with the state telling an elector how to vote.

Another important word in the text is elector. Eighteenth century general dictionaries define an elector as a person who does the choosing. Nathan Bailey’s 1765 dictionary defined an elector as “a chuser.” The first entry for “elector” in the 1785 edition of Samuel Johnson’s dictionary was “He that has a vote in the choice of any officer.” Other dictionaries featured kinred definitions.

Eighteenth century legal dictionaries did not define “elector,” but they did describe “election”—and with even clearer implications. The most popular law dictionary in America, that of Giles Jacob, said of “Election” that it “Is when a man is left to his own free will to take or do one thing or another, which he pleases.” Wording very similar to this appears in other law dictionaries.

Another important source of original meaning are practices of which the founding generation was aware. One was the election of members of Parliament in Scotland. Members were not directly elected, as in England. Rather, they were elected by “commissioners” selected for that purpose by voters or local governments.

A Scottish commissioner could be required to take an oath prescribed by parliamentary statute. By that oath he swore he had not received anything of value—apparently including his position as elector (“Office, Place, Employment”)—in exchange for his vote. In other words, a Scottish elector’s choice was not to be directed by the place that sent him.

Under the 1776 Maryland constitution, the state senate was selected by electors chosen by the voters. Electors were required to swear that they would “elect without favor, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.” Again, public expectation was that electors’ discretion would be unfettered.

The two leading precedents in the English speaking world both reinforced dictionary definitions: Electors were to think for themselves.

Now let’s turn to the Constitutional Convention. A key reason for adopting the Electoral College was to ensure the president’s independence from Congress and the states. Thus, James Wilson, who initially favored direct election of the president, shortly thereafter proposed an electoral college instead. According to Madison’s notes, Wilson “wished to derive not only both branches of the Legislature from the people, without the intervention of the State Legislatures but the Executive also; in order to make them as independent as possible of each other, as well as of the States.”

Obviously, permitting the states to dictate electors’ votes would undercut that policy of independence from the states. This is one reason the convention repeatedly rejected proposals for state officials to choose the president. As Edmund Randolph observed, “A Natl. Executive thus chosen will not be likely to defend with becoming vigilance & firmness the national rights agst. State encroachments.”

Next time: The evidence on elector discretion from the debates over the Constitution’s ratification.

A RESPONSE TO A “LIVING CONSTITUTIONALIST”

A RESPONSE TO A “LIVING CONSTITUTIONALIST”

Bruce Ledewitz is a very smart man who teaches constitutional law at Duquesne University in Pennsylvania. He recently wrote an article for the Philadelphia Inquirer—also reproduced in other news outlets. In his article, he contends that the Supreme Court’s decision this year in Trinity Lutheran Church v. Comer discredited “originalism.” Originalism, of course, is the approach of interpreting the Constitution as the Founders adopted it.

Several leading originalists—including Professor Randy Barnett (Georgetown) and Professor Michael Ramsey (San Diego)—already have published good rejoinders.  I’ve been strongly urged to write one as well.

I normally avoid getting into arguments about what kind of interpretation is best. My focus is on researching the Constitution’s history and meaning rather than arguing about it.  However, I finally agreed to respond for one reason: I believe Professor Ledewitz’s article illustrates how even intelligent and mature law professors usually are unprepared for the tasks of writing and teaching about the Constitution.

Most law professors focus, both in study and teaching, on Supreme Court cases. Most know little about the Founding Era record. Most lack the historical training needed to assess that record. Very few have studied the law of the Founding Era. Very few are familiar with the materials the Founders studied during their education, especially the Greek and Roman classics. Exceedingly few law professors are competent in Latin, the Founders’ second language.

Finally, law professors often corrupt their understanding of the Constitution with their own political preferences—either by claiming it means whatever they want or by underestimating it because it doesn’t give them what they want. These problems afflict faculty even at the nation’s most prestigious law schools.

Following are excerpted passages from Professor Ledewitz’s article with a corrective response appended to each excerpt:

Professor Ledewitz: “It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation.”

Answer: Professor Ledewitz apparently is unaware that, as explained below, “originalism” is merely the constitutional name for the method of documentary interpretation that has prevailed for centuries in the English and American judicial systems. Failing to take it seriously would be a far more radical change than I think even he would recommend.

Professor Ledewitz: “Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.”

Answer: Textualism is not quite the same thing as originalism. Textualism focuses on the meaning of words while generally avoiding resort to materials generated during the legislative process. It is usually applied to the interpretation of statutes. Pure textualism is more defensible in modern statutory construction than in constitutional interpretation because legislative history is sometimes manipulated in ways that the Constitution’s background was not.

In its most precise form, originalism is the view that judges and other officials should be faithful to the Constitution the people actually ratified (as amended). Originalists believe that judges and other officials should avoid the temptation to substitute a “constitution” they might prefer for the actual, historical document.

Writers often use the phrases “original public meaning” and “intent of the framers” as shorthand for originalism. In the 18th century, the common shorthand for originalism was “finding the intent of the makers.” All those labels can be confusing. According to the rules prevailing when the Constitution was adopted (and today as well, as to almost all other documents), an interpreter tries to recover the understanding of the parties (ratifiers). If, because of insufficient or conflicting evidence the interpreter cannot do so, then he or she applies the original public meaning as a substitute.

Professor Ledewitz: “The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs.”

Answer: Whether one can obtain “truth in political affairs” is not really relevant to the issue of the meaning of a written constitution. One reason for putting the Constitution in writing was precisely to create a rule book to contain and civilize the tumult of politics.

Professor Ledewitz: “Nevertheless, originalism has achieved a real rhetorical dominance.”

Answer: He writes as if originalism were a recent development. But seeking “the intent of the makers” has been the prevailing Anglo-American legal method of interpretation for centuries. The Founders absorbed it from, among others, the 16th century legal scholar Edmund Plowden. During the 18th, 19th, and early 20th centuries it was the prevailing way of interpreting the Constitution. Originalism’s “rhetorical dominance” was achieved because of this history and also because (1) that is how we construe most other legal documents (certain real estate instruments partially excepted), (2) it is hard to justify the current double standard, and (3) non-originalists have failed to agree on principled alternatives.

Professor Ledewitz: “But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap. In Trinity Lutheran, Missouri excluded a church playground from a state reimbursement grant program toward the purchase of safe playground surfacing material. . . .The church won, 7-2. Given the safety issue and the nonreligious nature of the playground, the decision was certainly a sensible outcome. But, from the point of view of originalism, the decision was ridiculous.”

Answer: Courts may err in applying any theory of interpretation. Assuming the decision in Trinity Lutheran was wrong, Professor Ledewitz does not explain why one error should discredit a procedure that has served us for centuries.

Professor Ledewitz: “If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches.”

Answer: This is incorrect. The primary principle underlying the Establishment Clause was that Congress must treat all religions impartially. The Clause did not extend to the states. Those seeking “disestablishment” at the state level opposed taxpayer subsidies to churches designed to promote particular religions. They did not object to paying a church for unrelated contractual obligations—the scenario in Trinity Lutheran. And they would have been outraged at Missouri’s practice of discriminating against churches generally.

Moreover, as Professor Barnett has pointed out, the part of the Constitution most relevant to Trinity Lutheran is the Fourteenth Amendment, not the First. This is because the Supreme Court has applied First Amendment principles to the states only because of language in the Fourteenth Amendment. Professor Ledewitz’s article is devoid of any discussion—or even any mention—of the Fourteenth Amendment.

Professor Ledewitz: “The historical absurdity of the decision is why only the two dissenters, Justices Sonia Sotomayor and Ruth Bader Ginsburg, discussed the history of the religion clauses. But, since those two justices are not originalists, their discussion must be considered merely opportunistic. There are no originalists on the court.”

Answer: It is poor practice to conclude from a single decision—even assuming that it was erroneous—that there are “no originalists on the court.” Justice Clarence Thomas has applied originalist jurisprudence to countless cases throughout his long tenure. Based on several cases in his first term, Justice Gorsuch also appears to be an originalist.

Professor Ledewitz: “Although no one bothered to say so in the decision, a departure from historical understanding was justified in the Trinity Lutheran case because the modern sense of unjust discrimination is much more robust than when the First Amendment was adopted and government funding of private activity is much more prevalent than in the 18th century, when such spending was largely unknown. What would not have struck the framers as unfair discrimination against religious believers looks like that to us.”

Answer: There are a number of problems with this statement. First, Missouri relied on a section of its state constitution (the “Blaine provision”) designed to discriminate against particular religions, notably Roman Catholicism. This violated the central principle of the Establishment Clause as understood by the Founders, not merely by us.

Also, as noted above, the actual amendment governing the case was the Fourteenth Amendment, which was adopted in 1868, not during the Founding Era. Discriminating against churches in distributing otherwise generally-available funding probably violates that Amendment’s Equal Protection Clause. To contend that Missouri’s practice was consistent with the Constitution, one must argue both that (1) the Establishment Clause does not apply to the states and (2) the Fourteenth Amendment permits discrimination against churches. Professor Ledewitz does not make those arguments.

Professor Ledewitz: “That is how the living constitution works. We apply constitutional principles in ways that make sense today. We do not clone the thinking of political leaders who faced vastly different circumstances. . . .”

Answer: Following the Constitution does not require us to “clone the thinking” of anyone. It requires only that we follow the meaning of the words in a controlling document. Courts do that sort of thing all the time. It’s their job.

Moreover, what are the “constitutional principles” Professor Ledewitz would have us apply? Are they principles that we make up as we go along? In that case, we are acting politically, not constitutionally.

Or does he mean we should derive our constitutional principles from the Constitution? But the Constitution embodies a number of basic principles, and they sometimes conflict. The framers and ratifiers carefully crafted the document’s language to balance those principles in specific ways. Originalist interpretation enables us to understand the results. Non-originalist judges and professors often insist on re-balancing principles to suit themselves rather than inquiring how the Constitution balances them.  In doing so, they are acting politically, not constitutionally.

Incidentally, the Founders were thoroughly familiar with judicial balancing. In some parts of the Constitution, such as the Fourth Amendment (“unreasonable searches and seizures”) they authorized it. Basic principles of legal interpretation tell us that where the text, or its legal meaning, do not authorize balancing, then judges have no authority to engage in it.

Professor Ledewitz: “The Trinity Lutheran decision does not mean that the cottage industry of originalism will shut down. The reason for its continuation is that originalism as a political matter never had anything to do with interpretive theory. The real purpose of originalism is to overturn the expansion of federal government power associated with the New Deal. . . . .”

Answer: An interpretive method that has endured for centuries cannot have been designed to overturn the New Deal of the 1930s. On the contrary, it was “living constitutionalism”—not originalism—that was fashioned for political ends. It was designed to offer a constitutional fig leaf for a federal coup d’etat. Not surprisingly, most people who study constitutional jurisprudence find the fig leaf transparent.

Professor Ledewitz: “Even the Republican majority in Congress does not understand the bill of goods it is being sold under the name of originalism. Included in the healthcare reform proposals being debated in the Senate are proposed national caps on pain and suffering in medical malpractice cases. Whatever one thinks of these proposals, they concern a problem national in scope that Congress should have the power to deal with. Certainly the framers of the Constitution, who were practical men intending to create a federal government with the necessary powers to deal with national issues, would agree with that if they were alive today. But, from the perspective of the 18th century, any such legislation would be unconstitutional as invasive of the reserved powers of the states.”

Answer: Professor Ledewitz is correct that some aspects of Republican federal tort reform proposals violate the Constitution’s meaning—a conclusion I have previously documented. However, he misunderstands how the Constitution’s enumerated power scheme was designed. The Founders did not give the federal government power to deal with every issue one might think “national in scope.” They were, indeed, practical men, and as such they recognized human activities of some kinds (e.g., religion, manufacturing) often affect others (commerce, foreign relations). But precisely because they were practical, they also recognized that sometimes the advantages of allowing Congress to legislate in all connected areas were outweighed by the disadvantages (e.g. the threat to liberty of centralized power).

Accordingly, the Constitution’s scheme of enumerated powers deliberately reserves certain potentially-national issues to the exclusive jurisdiction of the states. Most aspects of civil justice, including tort law, are in this category. Legitimate interstate action is still possible, however—through uniform state laws, interstate compacts, and, as a last resort, by constitutional amendment.

Professor Ledewitz: “As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.”

Answer: Is Professor Ledewitz saying that judges should re-write laws to their liking simply because some or all of their sponsors are no longer around? That is a prescription for oligarchy—and the Constitution was designed to protect us against that.

Of course, Americans could have adopted a British-style unwritten (living) constitution. That would have permitted a sufficiently determined cabal of politicians and judges to change the rules. Although academia is filled with modern-day Tories who would be happier in such a system, most Americans, whatever they think of particular judicial holdings, seem quite content to have our Constitution fixed and in writing.

Under the Constitution, Regulating Marijuana is Mostly a State Concern

Under the Constitution, Regulating Marijuana is Mostly a State Concern

A growing number of states are defying the federal marijuana ban, not only by easing their own laws, but by actively cooperating with marijuana growing, processing, and use. Many contend that pot should be a state, rather than a federal, concern.

The U.S. Supreme Court has ruled otherwise. In Gonzales v. Raich (2005), the court held that under the Constitution, Congress may use its Commerce Power to ban even “window box” medical marijuana, whether permitted under state law or not.

The Commerce Power derives from two constitutional provisions: (1) the Commerce Clause, which grants Congress authority to “regulate Commerce . . . among the several States,” and (2) the Necessary and Proper Clause, which says Congress may “make all Laws which shall be necessary and proper for carrying into Execution” certain itemized grants—including the Commerce Clause.

In Gonzales, the court found that marijuana growing and use were economic activities. It then followed some 20th century cases that (contrary to earlier rulings) allowed Congress to use the Constitution’s Necessary and Proper Clause to regulate economic activities with “substantial effects” on interstate commerce.

Was the Court correct? Answering that question requires us to determine what the Constitution meant to those who adopted it. Even though the Founders did not discuss marijuana specifically, a vast array of sources tells us their answer. The sources include debates from the Constitution’s framing and ratification, and writings informing us how key constitutional phrases were used in legal documents.

All students of the Constitution know it splits authority between the states and the federal government. What many do not recognize is that it deliberately divides responsibility over some closely-connected activities. For example, the Founders often observed that commerce and domestic manufacturing are tightly related. Nevertheless, their Constitution granted power over several forms of commerce to Congress, but left authority over manufacturing to the states. The Founders divided authority this way because protecting liberty was a higher priority than regulatory coordination.

So the Supreme Court is wrong to conclude that because an activity “substantially affects” interstate commerce it follows that Congress may regulate it. Many activities, economic or not, substantially affect commerce without being constitutional targets for Congress.

When the Constitution was adopted, the phrase “regulate commerce” had well-understood content. It referred to laws governing mercantile trade and certain associated matters, such as tariff barriers, commercial finance, navigation, and marine insurance. It did not include other aspects of the economy. In fact, many of the Founders are on record as specifically assuring the public that Congress would have no jurisdiction over agriculture, manufacturing, land use, or (according to Chief Justice Marshall) “health laws of every description.”

Growing marijuana is, of course, a species of agriculture.  Processing is manufacturing. The ban on personal consumption is a health regulation. The Constitution places control over all those activities squarely within the state, not the federal, sphere.

So does Congress have any power over marijuana? Under a correct reading of the Constitution, the answer is, “Only some.” The Commerce Clause allows Congress to restrict or ban the marijuana trade across national and state boundaries. Moreover, the Necessary and Proper Clause recognizes some additional authority.

The background and history of the Necessary and Proper Clause establish that the provision is not a grant of authority to Congress, but merely a rule of interpretation. The Clause does, however, acknowledge Congress’s prerogative to pass certain laws “incidental” to regulating commerce. For example, if Congress prohibits interstate trade in marijuana, it might also require interstate shippers to disclose whether their cargoes included the substance—but only if disclosure is reasonably necessary to enforcing the congressional ban.

However, incidental powers do not extend to comprehensive regulation of areas, such as agriculture or manufacturing, reserved to the states.

In sum: Under the original Constitution as ratified by the American people, Congress may regulate, or even ban, marijuana from interstate and foreign commerce. It also may exercise some incidental authority. But it may not constitutionally regulate or prohibit in-state growing, processing, or use of marijuana. For better or worse, those are exclusive concerns of the citizens of the several states.

Rob Natelson served as a law professor for 25 years, teaching, among other courses, constitutional law and First Amendment. He is the author of The Original Constitution: What It Actually Said and Meant. He is a Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver.

 

 

Why federal campaign finance disclosure laws are unconstitutional

Why federal campaign finance disclosure laws are unconstitutional

This article originally appeared in The Hill.

Many on the left are campaigning to “overturn Citizens United.” By this they mean they want to reverse the portion of Citizens United v. Federal Election Commission in which the Supreme Court upended a federal ban on corporations participating in candidate elections independently of the candidates’ campaigns.

The effect of the court’s ruling is to allow citizens to utilize the corporate form when participating in politics. By an accurate reading of the Constitution, the ruling was correct—not merely because contributions are protected by the First Amendment, but for a more fundamental reason: The Constitution, as originally understood, grants Congress no power to govern political campaigns. Although it does grant Congress some authority over the mechanics of congressional electionsregulation of campaigns was reserved to the states.

But Citizens United included a second decision, one rarely mentioned. In this part of the case, the court upheld federal laws requiring contributors to political ads to publicly reveal their names.

Unlike the first ruling, the second was a constitutional mistake. Although the court has since reaffirmed its position, it should promptly reconsider.

At the heart of the court’s error is the assumption that political advertising is an example of what the First Amendment calls “the freedom of speech.” In fact, it is what the First Amendment calls “the freedom of the press.” The distinction is crucial.

When the First Amendment was ratified, freedom of speech was exercised in person, so the speaker’s identity was almost always known. Freedom of the press, was exercised through a medium that enabled the author to remain anonymous.

The founders did not have electronic media: Their media were pamphlets, letters, posters, handbills, and newspapers. But the nature of the medium is irrelevant to the meaning of the First Amendment: Its phrase “freedom of the press” inherently included the right of the author to conceal his identity.

We know this, in part, because the founding-era records contain statements explicitly saying so. Writers on freedom of the press staunchly defended an author’s right to privacy. They contended that privacy enabled an argument to be considered on its merits without regard to the popularity of the author. Privacy encouraged contributions from the timid and the vulnerable. Privacy protected authors and their families from retaliation. Privacy enabled a person to participate in public debate without public debate taking over his or her life.

We know this also from how freedom of the press was exercised during the Founding Era. Writers on political subjects almost always concealed their true names by using pen names or not signing at all. The Federalist Papers were the most celebrated example of the dominant custom.

There was really only one limit to the right to author privacy. If a text was defamatory, treasonable, or otherwise represented a crime or civil wrong, a prosecuting attorney could insist that the media outlet reveal the author’s name. Otherwise, the author’s identity was no one’s business.

An incident that occurred in 1782 is illustrative.

An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor, another writer accused the editor of “treachery.”

In response, the editor explained that the governor had indeed asked the editor for the critic’s identity, but only (said the governor) “if you are at liberty to mention his name.”

In response to the governor’s request, the editor asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor comply with the governor’s request.

So not even an editor—much less the government—could disclose the name of an author who wished to remain anonymous. And if the author had not been consulted, anonymity was assumed.

The founders would have found the congressional law mandating disclosure of contributors to political advertising to be a gross—and very dangerous—violation of the First Amendment. 

Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

In the previous installment in this two-part series, I surveyed how the theory of “legal realism” came to displace the traditional views of law shared by Anglo-American attorneys and judges. I explained that the Constitution’s provisions for the judiciary were drafted with the traditional views in mind—but once “legal realism” began to dominate legal thinking, the judicial system no longer worked as expected. Legal realist thought encouraged judges to engage in activist behavior not anticipated by the Constitution.

How, therefore, do we recapture our judiciary from the legal realists?

The first thing to remember is that the problem centers in specific institutions: American law schools and the higher reaches of the judiciary. If follows that any solutions have to focus on those areas. It is pointless to attack those not responsible for the damage, such as state trial court judges or lawyers generally.

Next, keep in mind that,  despite its name, “legal realism” is an ivory tower theory. Although one of its founders, Oliver Wendell Holmes, Jr., had substantial real-world experience, this is not true of most of those who spread the doctrine. These are mostly law professors with little experience in law practice, and even less in business and the economy. They often promote realist ideas because they picked them up in law school or because they think that’s what faculty at more prestigious institutions believe. These professors spread the doctrine through their teaching and law journal articles and other media.

Any cure for judicial activism has to be directed not merely at the offending judges but at the legal opinion molders who encourage bad judicial conduct.  On the other hand, you can’t address the law school problem merely by firing every realist faculty member: They are protected by the First Amendment, norms of academic freedom, political reality, and American ideas of fair play.

Here are some more practical reforms. Each has the advantage of making sense for other reasons as well:

Term limits on appellate judges and justices. A single long term for each judge would encourage appointment of somewhat older nominees, nominees more tested and shaped more by experience than by inaccurate theories. Abolishing lifetime appointments probably would reduce judicial arrogance as well. In another post, I addressed  reasons for imposing term limits on the U.S. Supreme Court.

Choosing appeals court judges primarily from trial court judges and from experienced attorneys rather than from academics or politicians. Aside from the occasional academic like Antonin Scalia, most appointments should come from the trial bench and from the ranks of outstanding private practitioners. We should avoid appointing former politicians to the Supreme Court; they tend to become activists.

Reduce the role of the U.S. court system. Nothing in the Constitution requires that Congress fund any federal tribunal other than the Supreme Court. In fact, among federal systems (Germany, Australia, Canada, etc.), America is relatively unusual in having a complete national court system parallel to those of the states.  Although state judges sometimes are infected with the activist virus, I suspect it is more prevalent among federal judges. If so, it might make sense to pare back the federal courts and rely more on state judiciaries.

Open up legal education to free market competition. Many states grant a monopoly on legal education to law schools approved by the liberal American Bar Association. States should permit aspiring lawyers to receive their education by the traditional clerkship method. They should permit law school accreditation by entities other than the ABA. Of course, the bar exam and associated licensing requirements should be preserved.

Establish higher standards for law professors. The following is a typical resume for a newly hired law professor:

  • Good grades at a prestigious school where most of the teachers lack real-world experience,
  • a year or two clerking for a judge or writing memos in a law firm not typical of practice generally (e.g., a Wall Street firm),
  • being hired onto a faculty.

Obviously a person with a resume like this is utterly unqualified to teach law students how to be good lawyers. Further, such a person is easy prey for silly theories.  State authorities should require that law faculty have significant experience in what they teach, especially at state law schools. States require extensive experience in licensing other professions (such as physicians), and even for skilled trades such as plumbers and electricians.

Require fairer hiring procedures for law professors. In addition to employing novices to do a professional job, law school hiring malpractice includes using politically correct criteria favoring certain ethnic groups and freezing out libertarians and conservatives. Law schools sometimes choose faculty with interests in fringe subjects (e.g., “gender studies”) over experts in subjects their students actually need (e.g., commercial law). This is another problem legislatures and boards of regents can address.

Require law professors to engage in real research and publish their findings. Much of the “research” in legal academia amounts to writing articles that are just fancy briefs for pre-fixed conclusions. Often a pre-set conclusion is some leftist canard the professor picked up as an undergrad.

University law schools are not playgrounds for mental self-indulgence. They are institutions with graduate-level status. Faculty research should be appropriate to that status.

Thus, law professors should be required to produce genuine, objective, peer-reviewed investigations into real world subjects. Examples include the influence of historical events on law, how anti-trust rules affect the economy, the psychological effects on jurors from specific courtroom procedures, and the effects on crime of sentencing guidelines. The goal is to push back the frontiers of human knowledge, and perhaps improve the legal system as a result.

Some law professors do valuable work of that kind, but most do not. If a professor wants to spend his days writing briefs arguing for constitutional rights for dolphins, then he should seek employment with a political advocacy group. He should not be taking up space on a research faculty.

* * *

A common theme connecting all these proposed solutions is “opening up the closet”—letting in the sunlight of fairness and from the real world. That is a tested prescription for dissipating arrogance and theoretical cobwebs. The difficulty is in letting the public know that the closet exists, and that we need to open it.