From elastic!lethe!geac!onramp.ca!news2.insinc.net!news.insinc.net!news.bc.net!arclight.uoregon.edu!news.sprintlink.net!news-stk-200.sprintlink.net!news.sgi.com!www.nntp.primenet.com!nntp.primenet.com!cs.utexas.edu!howland.erols.net!surfnet.nl!news.unisource.nl!xs4all!xs4all!mail Fri Sep 27 19:36:45 1996 Xref: elastic misc.legal:17473 misc.survivalism:1763 talk.politics.guns:113848 Path: elastic!lethe!geac!onramp.ca!news2.insinc.net!news.insinc.net!news.bc.net!arclight.uoregon.edu!news.sprintlink.net!news-stk-200.sprintlink.net!news.sgi.com!www.nntp.primenet.com!nntp.primenet.com!cs.utexas.edu!howland.erols.net!surfnet.nl!news.unisource.nl!xs4all!xs4all!mail From: Dustbin Freedom Remailer Newsgroups: talk.politics.guns,misc.legal,misc.survivalism Subject: The Rule of Non-Law Date: 25 Sep 1996 20:09:05 +0200 Organization: Mail to Usenet Gateway at Replay Lines: 119 Sender: daemon@basement.replay.com Message-ID: <199609251740.NAA19914@godzilla.athensnet.com> NNTP-Posting-Host: basement.replay.com X-XS4ALL-Date: Wed, 25 Sep 1996 20:09:14 MET DST X-To: mail2news@utopia.hacktic.nl Comments: This message did not originate from the address above. It was remailed by an anonymous remailing service. If you have questions or complaints, please direct them to X-Mail2News-Errors-To: postmaster@replay.com Reprinted from National Review 9-16-96, p. 50; Subscriptions $57/yr, Box 667, Mt. Morris, IL 61054. Rule of Non-Law THE first time I heard Judge Bork speak was at the Philadelphia Society in 1987. He was like a Hebrew prophet excoriating a faithless band of rulers, the judges who had perverted our Constitution. But he held out hope, in the wave of conservative legal theorists even then rising in the academy and on the bench. Nine years later, Judge Bork's essay above implies that it may take divine intervention to save our country. Something very like that was the consensus of this year's Philadelphia Society meeting. The theme was "Is There Still a Legal Order?" and the short answer was: No. The longer answers explored the many ways in which our current jurisprudence is a through-the-looking- glass distortion of traditional Anglo-American legal theory and practice. Lawyer jokes are nothing new--Shakespeare gave Dick the Butcher the line, "The first thing we do, let's kill all the lawyers"--but the theory used to be, as Father Robert Sirico reminded us, that legal proceedings were in some sense a search for truth. While that search was never disinterested, a lawyer, having accepted a case, was bound to do his best even for a guilty client--the assumption was that the truth would out. But today, Judge Stephen Markman pointed out, the legal establishment says quite openly that it cares not about the truth, but about "procedural safeguards." If the arresting policeman made the slightest slip in collecting evidence, the evidence is withheld from the jury: "The fact-finder [in a trial] must be misled concerning the facts." Worse yet, Professor David Forte remarked, is the corrupting effect on the police: "Police lie all the time, and they lie because the truth is not available to them." The one good thing Judge Markman saw in the O. J. Simpson trial is that the corruption of the criminal justice system was exposed to public view, "and the American people did not like what they saw." A parallel corruption has taken place in civil law. By now it is not only conservatives and insurance executives who complain about the huge awards given to plaintiffs. But the problem goes much deeper than that, Professor Michael Krauss explained. It is that human beings are no longer regarded as moral agents in American law. Tort and contract law used to be the "twin pillars" of the "private ordering" of affairs, with government merely providing a framework within which people could make their own agreements and settle their disputes. Now, however, the courts have transmuted both tort and contract law from a framework for private ordering into a vehicle of public policy. If an injury has occurred, the courts have decided, someone with deep pockets must be held responsible. The idea that someone who the court agrees acted blamelessly could nonetheless be held liable would have seemed to our ancestors not merely a perversion of justice but an impossibility; and yet that is what happens in virtually all successful product-liability suits. Likewise, a contract is no longer a contract if one party wants out, and if the contract contravenes the judiciary's current social thinking. This is partly, Judge Markman summarized, a matter of government taking on "frivolous responsibilities" (such as micromanaging "diversity") and neglecting its real ones (such as protecting law-abiding people from criminals); and we see another, vivid manifestation in the field of constitutional law. In short, as Michael Uhlmann of the Ethics and Public Policy Center put it, the Supreme Court has been trans- mogrified from an institution meant to limit the activity of government into one taking control of "the minutest details of human life." And totally without warrant. Lino Graglia made a point that he has also made in these pages: Constitutional law as it is taught and practiced today has nothing to do with the Constitution. It is derived almost entirely "from four words of one clause of one amendment": "due process" and "equal protection." And you can bet, he added, that the Justices "do not reach their decisions by pondering those four words." As a result of the public policies that they impose in the course of their "interpretation," Professor Ellis Sandoz added, we should be "less worried about whether we have a Constitution than about whether we have a country." "Civic consciousness" is not faring well in today's society, where group is set against group and every wrong is thought to have a government-imposed remedy. However, Roger Pilon of the Cato Institute took issue with the view expressed by Professor Graglia that our representative institutions would govern more in accordance with the Constitution if the courts could be stopped from interfering. It was not the courts, Mr. Pilon reminded us, but the President and the Congress that in the Progressive Era, in the New Deal, in the Great Society, and even under Republican Administrations since then--have given us the welfare state. (Mr. Pilon suggested that the Supreme Court has actually been far too restrained: it should be striking down any act of Congress that is not explicitly permitted by Article I of the Constitution.) Another point of disagreement was over the extent to which natural law should be brought into the discussion. Forrest McDonald pointed out that through the many centuries of Western Civilization, it is only recently that anyone has argued against the notion of the jus gentium-- the "assumption that there is a concept of what is right, and that the rational person has the ability to discover what this is." (Even our cultural elites, while arguing against an "imposed morality," are busily imposing a counter-morality of their own.) But invoking a higher law-- whether in terms of the jus gentium or of natural law--has its risks, as Stan Evans put it, for Justices Brennan and Douglas would have said that they were applying a higher law. But sometimes, David Forte called, they don't even bother to do that. In Roe v. Wade, "the only legitimacy Justice Blackmun asserted for the creation of that new right was that, in his words, 'The members of the Court feel it is a liberty of the Fourteenth Amendment.'" Blackmun, like so many other post-New Deal Justices, had "forgotten the difference between authority and power." Authority "limits the exercise of power to only those who have the legitimate right to exercise it." What can be done to recall judges to a recognition of that difference? Work to elect Republicans who will appoint and confirm better judges, suggested Ed Meese. "Prayer and fasting," suggested Mike Uhlmann. -LINDA BRIDGES Miss Bridges, NR's managing editor, is co-author of The Art of Persuasion