Stephen B. Presser, Chronicles’ legal-affairs editor, identifies a crisis in American legal education. In his book Law Professors, he shows us why a newly minted graduate of an elite American law school has no clue how to handle a case or provide useful legal services. This is not a matter of just being young or “green,” but a result of a legal academy enthralled by subjects such a critical race theory, feminist legal theory, and LGBT studies. Students learn little about the law, but much about the professors’ views of social justice. Unfortunately, this situation has existed for some time and is escalating. Elite American law schools have been infected with this claptrap for decades. Thus, there are few wizened judges brought up in an older tradition which understood that, in the author’s words, “societal order required law, law required morality, and morality required religion.”
Presser traces the legal academy’s demise through the study of 22 law professors, some of whom went on to serve on the Supreme Court, in the U.S. Congress, and in the White House. Through the stories of these 22 men and women, Presser writes a biography of American law that is insightful, useful, and very readable.
Presser starts with Sir William Blackstone, who believed that judges were to discover existing law and make it known. “For Blackstone,” writes Presser, “the notion that a judge should determine the law based on his or her personal experience or values would have been anathema or incomprehensible.” In the conservative mind of Blackstone, a society with fixed and predictable rules is far healthier than one governed by a judge’s individual concept of justice.
From Blackstone, Presser moves to the American founding and how popular sovereignty molded the American understanding of constitutional law. For this task one would expect a discussion of St. George Tucker, often called the American Blackstone, who republicanized Blackstone’s Commentaries by lengthy appendices discussing the federal Constitution, popular sovereignty, and other matters. For the first half of the 19th century, Tucker’s work was the textbook of American legal education.
Instead, Presser opts for James Wilson and his nationalistic view of sovereignty as residing in the American people at large rather than the people of the several states. While Wilson certainly merits inclusion in the book, the omission of St. George Tucker and the Jeffersonian Republican understanding of the Constitution as a compact among the people of the several states is the one glaring error in what is otherwise a masterly study. While Wilson’s view ultimately prevailed over Tucker’s through the trial of arms that saw Lee surrender at Appomattox, the intellectual force of Tucker’s argument remains strong and worthy of study.
One of the best chapters in Law Professors deals with Oliver Wendell Holmes. Presser does sound work in explaining how this former Union soldier became lionized in American law schools in the second half of the 20th century. In his book The Common Law, Holmes argued that judges do not discover and pronounce the law, but instead are engaged in a legislative task of creating law to meet the needs of the times. This resonated with disciples of the Warren Court, who embarked upon a progressive revolution through the judicial process. In the realm of state and federal relations, these social-justice warriors ignored Holmes’s warning that courts should not second-guess decisions of elected legislatures so long as there was a rational basis for the legislative action. By strictly scrutinizing state legislation that affected certain groups favored in progressive ideology, the mid-20th-century courts took much discretion away from state legislatures and resurrected the activist substantive due-process jurisprudence that Holmes had fought against in the early 1900’s.
To understand fully the demise of American law, Presser’s treatment of Ronald Dworkin is required reading. Dworkin’s academic task was to justify the work of the Warren Court and to create a system of interpretation that freed the judges from the written rules of the Constitution and statutory law.
Dworkin argued that the essence of the judicial task was to discern the broader more abstract principles that were inherent in a system of legal rules, and to apply those principles in a manner that provided for the growth of law to meet the times.
Dworkin disliked rules because he believed them to be all or nothing. Principles, according to Dworkin, had weight and could be balanced to achieve a result consistent with underlying notions of morality as discerned by the judge. For example, although the rule of the Fifth Amendment expressly permits capital punishment, the principles of the Eighth Amendment’s prohibition against cruel and unusual punishment allow a judge to interpret the Constitution to ban the death penalty on grounds of developing sentiments of national morality.
Presser concludes with a perspicuous indictment of Dworkin and his ilk:
The elegant and elaborate theories of contemporary American law professors that justify departures from prior precedents or implement new versions of constitutional meaning are similarly splendid, but similarly dishonest. If the rule of law in this country means anything, it is that it cannot be set aside without endangering everything on which popular sovereignty as expressed in our Constitution and law ultimately stands.
Presser laments that so many of his colleagues in the academy have “articulated and imagined an American law that is now a danger to the legal and Constitutional foundation on which our republic rests.” He fears that true law cannot be restored without the people rising up to elect officials dedicated to a restoration or to summon another constitutional convention.
Presser deserves applause for accurately diagnosing our problems and eschewing a creation of his own splendid theory to bring us back to a Blackstonian understanding of law. One gets the distinct impression that Presser does not really believe that the people of America will stir themselves, in elections or otherwise. In this regard, the book ends on a melancholy note. Perhaps the next edition, one with a chapter focusing on Tucker, the locus of sovereignty in the people of the states, and current movements reconsidering nullification and secession will provide a spark of hope that this magnificent work currently lacks.
[Law Professors: Three Centuries of Shaping American Law, by Stephen B. Presser (St. Paul: West Academic Publishing) 486 pp., $45.00]