It is a remarkable fact of legal scholarship in this Country (a few of us presume to argue) that there have not been, during the past century, a dozen scholars who can be reliably identified as sound students of the Constitution of 1787 and of the largely-inherited juris-prudential system upon which it depends. These scholars tend to be limited to William Winslow Crosskey (1894-1968) and those who have been influenced by him (particularly during his decades-long tenure at the University of Chicago Law School). Included among these have been Michael Conant (of the University of California, Berkeley, who died in December 2012) and Abe Krash (a retired partner of the Arnold & Porter law firm in Washington, D.C.).
Mr. Crosskey’s masterpiece was his two-volume treatise, Politics and the Constitution, published by the University of Chicago Press in 1953. That was the year that Leo Strauss, of the University of Chicago Political Science Department, published (also with the University of Chicago Press) his remarkable treatise, Natural Right and History. Mr. Strauss once told me that he had heard that Mr. Crosskey read the Constitution as carefully as Mr. Strauss wanted to read the great texts in political philosophy.
Michael Conant and I attempted, a few recent years ago, to get published an abridged version of Politics and the Constitution. But there did not seem to be any interest in this at the University of Chicago Press. On the other hand, the Press continues to publish significant books by and about Leo Strauss.
One dramatic sanctification of contemporary absurdities in constitutional scholarship may be seen in how the current “filibuster” rule can be routinely used in the United States Senate. Thus, an April 2013 vote on a then quite-popular gun-control proposal could be blocked because it got “only” fifty-five of the sixty votes now said to be needed for any controversial measure in that one-hundred-member body. It can be particularly exasperating whenever it is recognized that the minority of Senators blocking not only a vote but even serious debate on an issue may come from States that have altogether relatively little of the total population of the Country.
Fundamental questions can be raised here and elsewhere about the future of effective self-government in the United States. On the other hand, a properly-phrased point of order, approved by the Vice President as the presiding officer in the Senate, could repudiate at once the current “supermajority” standard clearly not provided for by the Constitution. Indeed, this Senate rule makes a mockery of the presuppositions about informed self-government upon which the Constitution has always depended.
No responsible legislature allows itself to be manipulated in the way the Senate has been for some time now. The public has not been led, by the academic and other recognized authorities in constitutional law, to identify the current state of affairs here as a travesty. A self-induced legislative paralysis does not speak well of those who put up with such determined atrocities, especially when the misconduct here is perpetuated in successive Congresses.
It is troubling enough when the Senate allows itself to be severely impeded in its efforts to legislate. Perhaps even more troubling may be how the United States Supreme Court routinely conducts itself in dealing with the legislation that does come out of the Congress. The Court does not recognize that it should pretty much limit itself to interpreting and applying what the Congress has somehow managed to do.
Most dramatic here is what the Supreme Court has long claimed, that it has the duty and power to pass routinely on the constitutionality of Acts of Congress. Of course, no provision for such a duty and power may be found in the Constitution of 1787. Nor is it to be found in the substantial constitutional heritage upon which the Framers of the Constitution drew.
The Supreme Court may properly lay claim to a power (and, indeed, a duty) to protect itself against either Legislative or Executive interference with what Judges are expected by the Constitution to be and to do. One may even suspect, however, that any Judiciary which routinely acts as ours does simply does not know itself. What, it may even be wondered, does that Constitution look like which our Judges somehow have in view – and where did it come from?
We have noticed that the Senate of the United States has permitted itself to be crippled by non-constitutional, if not even unconstitutional, restrictions. But the Supreme Court of the United States has moved in the opposite direction. That is, it has tended to act more and more like a third branch of the National Legislature.
Such a determined usurpation of the legislative power makes us depend, for critical political decisions, upon men and women who are not competent and responsible politicians. The Justices, especially since they have come to be routinely elevated from the lower ranks of the Judiciary, tend to be (politically-speaking) “nobodies”. They may not even have any significant constituency to be guided by.
What, it can be wondered, equips them to pronounce repeatedly on one major political issue after another? Do they ever wonder why anyone should take seriously the essentially legislative determinations they promulgate from time to time? Or is it that they cannot see how much legislating they routinely do as judges?
On the other hand, our federal judges no longer claim the power they were once generally believed to have – the power to guide the development of the Common Law in the United States. That power was decisively recognized, in Swift v. Tyson (1840), by perhaps the most learned Justice ever to sit on the United States Supreme Court. It was abandoned, as a duty of the Courts of the United States, in Erie Railroad Company v. Tompkins (1938).
This abandonment was only one of the consequences of an attraction for scholars of “legal realism” – and of a tacit repudiation of the ages-old teachings of Natural Right. Judges, lawyers and Senators steeped in the Common Law tradition were accustomed to search worldwide for guidance about how justice might be served in various circumstances. Such participants in the Common Law process have always conversed among themselves across both continents and centuries.
Even so, they recognized that their reasoning and conclusions were always subject to control by the legislature of the community where any particular court sat. Of course, the more thoughtful a court seems to be in developing Common Law principles, the more likely a sensible legislature would defer to what judges carefully develop. It can be expected in such circumstances that everyone involved would be encouraged to recognize what is appropriate for each of the branches of government—the legislature, the executive, and the judiciary.
We have noticed how much our judiciary has taken on legislative functions. We have also noticed that this is ever more so at a time when the Congress of the United States does not properly recognize its own powers. We should now notice as well how much the Executive Department of the United States also exercises more and more legislative powers.
Thus, there seems to be in this Country an ever-growing corpus of Executive decrees. Some of those directives seem to be acknowledged by Acts of Congress. Indeed, it might even be wondered who is really in charge.
Dramatizing this development is the reliance of a President on “signing statements.” This seems to be a way of vetoing part of a Congressional bill without giving up what is available elsewhere in the bill. Such “statements” can even seem to be a kind of legislating, something that a self-respecting Congress would repudiate as Executive usurpation (something evident as well in our having dispensed with genuine declarations of war since the 1940s).
Another useful way of distinguishing among the Branches of the Government of the United States is to recognize that the members of the Judiciary and the Executive are much more subject to Chance developments than are Members of Congress. This is evident (I have indicated) in who does manage to get on the United States Supreme Court. It is evident as well, perhaps even more, in who becomes President from time to time.
Some may even be tempted, considering how many chance developments can account for the emergence of a President every four years, to see Divine Providence at work here. On the other hand, a President may come to feel that he himself is in the grip of irrational (of not even Satanic) powers that very much limit his effectiveness. The “unreality” of it all can be intensified for any President who permits himself to be constantly on the move physically.
There must be from time to time a President, or at least someone close to a President, who senses that every President is very much a prisoner of various contrivances, including some fashioned by him. Is not such a salutary awareness more likely in circumstances when the President is restrained – that is, really sustained by old-fashioned Constitutional standards? Much is to be said, that is, for an informed awareness of standards that not only restrain exercises of power but also reassure one when one is acting in accordance with age-old standards, standards that provide for and permit genuine self-government on a large scale.
We can believe that we have in the current President a leader better grounded in the conventional legal training of our day than anyone else in that office since, say, the Second World War. His intelligence and innate decency should be evident to all. And yet he too has been moved to accept questionable practices developed by his predecessors.
This includes much of the ugliness associated with “our” Guantanamo aberration. How long should men be held without serious trials? And, it can also be wondered, what reliance does there continue to be by “us” on unrelenting torture?
Then, of course, there is a growing use of armed drones to kill targeted individuals (and anyone else nearby) distant from any recognized battlefield. Thus, we have had to become accustomed to the President of the United States issuing, solely on his own authority, writs of executions. No court, it seems, ever reviews such orders – and nothing need be said in advance even to the targeted villain – all of which can make one wonder what has become of the rule of law and the great writ of habeas corpus.
Here, as elsewhere, questions should be raised about a Sense of Proportion. Such questions have been repeatedly relevant as one assesses the responses we have relied upon during a decade-long War on Terror. The remarkably excessive response to the April 2013 Boston Marathon bombing can remind us of how difficult it can be to remain sensible in response to evil provocations.
One did not hear reservations expressed publicly about the citywide “lockdown” imposed after that Patriots Day explosion. Is there not in the heritage of the relevant patriots of New England any reliable guidance to how one should conduct oneself in dreadful circumstance? It can be wondered what the prominent officials involved in this exercise in self-induced paralysis were thinking of.
Among them, of course, were respectable lawyers. Should it be wondered as well, therefore, what deficiencies there may be, in the accepted legal training of our day, that keeps lawyers from being sensible in what they think, say, and feel? What, in short, do we need to be reminded of among the great constitutional (and moral) principles that we have inherited and been entrusted with?
These remarks were prepared for a Constitutional Law Seminar, Loyola University of Chicago School of Law, April 22, 2013. They should be included in Volume X (Reflections on Habeas Corpus, the Bill of Rights, and the Constitution) in my projected ten-volume Reflections series (the fifth volume of which was published in 2013).