Taking Liberties: Lawyers above the Law
Carlin, David R., Jr., Commonweal
The younger of my two sons has just begun law school. What a great country. For years I have been an underpaid columnist, yet within a short time my son can look forward to being an overpaid lawyer. And all this in two generations!
This past summer, before he left for school, he and I would sometimes discuss one of my pet peeves, the usurpation (as I see it) of legislative authority by the courts, especially the United States Supreme Court.
I would probably have been unhappy with the lawmaking imperialism of the courts in any case, but my unhappiness is aggravated by my experience as a state legislator. I spent twelve years in the Rhode Island Senate, and every time the courts strip American legislatures of one more area of jurisdiction I take it personally.
I am like those women you often run into in the prolife movement, activists with a large number of children. They find the prochoice ideology personally offensive, since it seems to them to devalue their many maternal sufferings and sacrifices. I am similarly offended by the ideology of judicial imperialism, which seems to devalue my years of legislative suffering and sacrifice.
My son tells me that his professors have scant sympathy for my pet peeve. They concede that courts should give deference to legislatures, but not absolute deference. Laws must be reasonable; and when they are not, courts (who, as we know, are incarnations of reason) have no choice but to intervene.
I respond by saying that this is exactly the kind of thing you'd expect law professors to say. After all, the more powerful courts become, the more powerful is the legal profession as a whole. Thus, all lawyers have a vested interest in seeing courts expand their jurisdiction.
And if this is true of lawyers generally, it is a fortiori true of law professors. The latter, especially those at elite law schools, are the normal source of ideas for judges. An imperialistic judiciary needs an endless supply of new ideas in order to justify its aggressions, yet few judges are sufficiently intellectual to create their own ideas, and among those possessing this capacity fewer still have the leisure needed. Hence judges become dependent on the world of law professors, a world that abounds in creative and leisured intellectuals. If democracy is being replaced by "judgocracy," this latter is increasingly becoming a fig leaf for "professorocracy."
Perhaps Plato, who disliked democracy and wanted society to be governed by philosophical rulers, would have been tickled by this development. But it is doubtful it would have pleased Abraham Lincoln, who, though a lawyer - but one who had never been ministered to by law professors - was attached to the quaint notion that America should have a government of the people, by the people, and for the people. In his day courts were less prone to overrule legislatures than they are now. But it happened at least once during his years as a lawyer, in the Dred Scott case; and Lincoln, not having had the good fortune to be tutored by twentieth-century law professors, did not applaud the decision as the triumph of "reason" over "the tyranny of the majority."
One of the great sachems of the law-professor tribe is Ronald Dworkin, who holds professorships on both sides of the Atlantic, at Oxford and at New York University. In the August 8, 1996, issue of the New York Review of Books, he gives striking expression to a constitutional theory that can only be described as profoundly antidemocratic, at least if we take "democracy" in its literal sense, that is, as synonymous with "popular government. …