April 6, 2011 | The New Criterion
Honoring the Compact
In an age when judges are habituated to invent rather than apply the law, a written Constitution is a thing of irony. We’ve become exactly what constitutions are designed to prevent: a nation not of laws but of men—er, sorry, of people. And not of just any people: We’ve become a nation of lawyers, a juristocracy in which courts first impose, say, gay marriage despite its total want of constitutional mooring, then re-impose it when 37 million Californians have the temerity to buck their robed betters in a referendum—with the law profs tut-tutting that such “fundamental” matters are beyond the competence of the rabble.
To show just how wayward the place we have landed, how removed from our trailblazing commitment to popular sovereignty, is the burden of Gary L. McDowell’s powerful new book, The Language of Law and the Foundations of American Constitutionalism Professor McDowell, a prolific author and an instructor on the intersection of law and political science at the University of Richmond, was a top speechwriter at the Reagan Justice Department. Those were the days when Attorney General Edwin Meese III famously forged the case for originalism, the interpretive philosophy which construes constitutional provisions in accordance with what they were understood to mean at the time of their adoption. Thanks to a generation of scholars raised on Meese’s speeches and the jurisprudence of Robert Bork and Antonin Scalia, originalism swims strongly against the progressive tide of “organic” constitutionalism. The Language of Law is a vital and especially erudite contribution to that tradition.
The living constitution is, in McDowell’s refutation, a Frankenstein monster created in the laboratories of Progressive-era law schools, where the very conception of legal education—and of the law itself—underwent radical change. In the early days of the Republic, the profession of lawyering was essentially practical. Apprentice attorneys trained by reading law in the offices of established practitioners. The sprouting of school-based legal education in the 1780s coincided with the adoption of the Constitution. While legal study became more systematic, the tradition of politicized learning was also launched.
It was, however, much different then. Students were unabashedly steeped in the ideals of republicanism, the new nation’s animating spirit. As the legendary Justice Joseph Story explained upon inaugurating his Professorship of Law at Harvard in 1829, this civic faith would guard against the dangers of internal rot to which republics were especially susceptible. For students to perform their essential role, however, law would have to remain for them a collection of bedrock principles revealed over generations of human experience, not “a little round of maneuver and contrivances” by which the shrewd would circumvent the law to win this or that case. Thus did legal education consist primarily of lectures from learned treatises expounding on these principles. Individual cases were given direct attention only to the extent they were vehicles for highlighting some antecedent principle.
Everything changed when Christopher Columbus Langdell was named dean of Harvard Law School and instituted, in 1870, the casebook method of legal instruction. There was a cosmetic appeal to this tectonic shift in focus; time-honored principles gave way to the rationales by which particular controversies were adjudicated. Proponents urged that it would train lawyers to think as courtroom advocates. The overarching concept, though, was that law was not merely a profession to be practiced but a science to be theorized—a notion Langdell reinforced by recruiting as his instructors academics bereft of practical experience. No longer would the primary source of law be the dilations on stale principles found in treatises but rather the act of judging itself, the machinations of jurists—which, predictably, became more willful as admiration for art overwhelmed dedication to craft.
The zeitgeist inverted the law into a force for applied change in society. An increasingly energized judiciary was encouraged by the emergence of law reviews, the theoretical oeuvre of the new professoriate. Gradually, the Constitution lost its revered place as fundamental law; it came to be seen as just a document, subsumed into judge-made constitutional law, the rough massaging of text was kneaded to suit the jurists’ fleeting pieties and subjective sense of justice.
As McDowell demonstrates, cutting-edge political scientists of the Progressive Era were even more explicitly evolutionary (which is to say, revolutionary) than Langdell. For Princeton’s Woodrow Wilson, the Constitution was not a set of injunctions derived from universal principles and therefore immutable except for the laborious amendment process. It was an adaptable “living thing” which fell “not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.” To be a “vehicle of life” rather than a “mere legal document,” the Constitution would need to become a “constitutional convention in continuous session”—with “judicial interpretation” the “chief instrumentality” by which law codified the “facts of national development.”
Wilson’s signal contribution to today’s judicial supremacism was his 1905 recruitment of Edwin S. Corwin to Princeton. Nominating Corwin the “father of the age in which we still live,” McDowell is meticulous in his deconstruction. To convert the Constitution into “a living statute palpitating with the purpose of the hour,” Corwin conflated the common law with the “higher law”—which he took to be the natural law, reflective of permanent elements of human nature uniquely discoverable by the jurist. This “higher law” was portrayed as the embodiment of “right reason,” which Englishmen from Henry II to Sir Edward Coke had elevated over centuries to the supreme law, voiding even acts of Parliament.
It is mythology. While the Progressive project was to free judges from the chains of constitutional text so that they could enforce contemporary notions of right and wrong, McDowell recounts that Coke actually sought to tether judges to precedents—and not to some abstract notion of “law,” but, very specifically, to the well-established laws of England. These he referred to as “artificial reason” precisely to distinguish them from “natural reason.” The jurist’s value was expertise in the firmly rooted authorities of British common law, not insights drawn from some amorphous “higher law” judges would invent as they went along.
The Progressive project also betrays the groundbreaking natural law theories that so influenced the Framers. McDowell’s excursus on Hobbes and Locke may be the most valuable part of his invaluable book. Natural law was not a supernatural force inscribed by God on the hearts of men, manifested in custom and tradition. It was knowable by human reason. By the power of reason, man perceives the will of his superior creator, inducing him to enter civil society, to institute governments that secure rights nature leaves insecure. With no man having a right to rule another, the legitimacy of those governments lies in the consent of the governed, which alone provides the power to fashion rules of justice.
This philosophic tradition of popular sovereignty undergirds the Constitution. As McDowell illustrates, even such antagonists as Thomas Jefferson and John Marshall agreed that the Constitution had to be construed in accordance with its original meaning. This honoring of the social compact was the nation’s security against tyranny. A judge’s role was to enforce the compact, not to adapt it to fit what Corwin called “the advancing needs of the time.” Constitutional meaning, Marshall admonished, does not change with “the peculiar circumstances of the moment.” “Judicial power” was not transformative. It was exercised “to effect the will” of the lawgiver, not of the judge.
For Marshall, as for Professor McDowell, this was, and remains, “the most sacred rule of interpretation.” The Language of Law is a clarion call for its restoration.