Subject: The Rule of Non-Law

From: Dustbin Freedom Remailer <[email-masked]>
Date: 25 Sep 1996 20:09:05 +0200

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