Taking liberties
Jr, David R Carlin
DAVID R. CARLIN, JR. TAKING LIBERTIES Lawyers above the law 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...
...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...
...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...
...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...
...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...
...Another social revolution"-a revolution made by judges...
...They concede that courts should give deference to legislatures, but not absolute deference...
...The Supreme Court," Dworkin says, "has not yet indicated whether it will hear appeals from these cases...
...I am like those women you often run into in the prolife movement, activists with a large number of children...
...There Dworkin discusses two 1996 federal appeals court decisions that held, though on different grounds, that there is a constitutional right to assisted suicide...
...So it long ago resorted to the undemocratic strategy of having the courts discover (oh, happy coincidence...
...And if this is true of lawyers generally, it is a fortiori true of law professors...
...How odd, and how typical, that the court should prove its superior wisdom by failing to grasp a distinction that everyone always grasped until a few academics raised a quibble the day before yesterday...
...Thanks to imperialistic judges and their professorial apologists, this strategy has worked well to date...
...One of the great sachems of the law-1 professor tribe is Ronald Dworkin, who holds professorships on both sides of the Atlantic, at Oxford and at New York University...
...Laws must be reasonable...
...Thus, all lawyers have a vested interest in seeing courts expand their jurisdiction...
...They find the prochoice ideology personally offensive, since it seems to them to devalue their many maternal sufferings and sacrifices...
...It is by no means certain that the Court will ultimately confirm them...
...After all, the more powerful courts become, the more powerful is the legal profession as a whole...
...Abortion is thriving in America, and if things go as Dworkin and others in the legal professoriate hope, euthanasia and gay marriage will soon be thriving, too...
...But it happened at least once during his years as a lawyer, in the Dred Scott case...
...But, hey, you can't have everything...
...In his day courts were less prone to overrule legislatures than they are now...
...I would probably have been unhappy with the lawmaking imperialism of the courts in any case, but my unhap-piness is aggravated by my experience as a state legislator...
...If democracy is being replaced by "judgocracy," this latter is increasingly becoming a fig leaf for "professorocracy...
...The Ninth Circuit held that the state of Washington's legislative ban on assisted suicide was an unwarranted violation of a person's liberty interest...
...and when they are not, courts (who, as we know, are incarnations of reason) have no choice but to intervene...
...he is now calling on the Court to make a euthanasia revolution...
...The latter, especially those at elite law schools, are the normal source of ideas for judges...
...And all this in two generations...
...My son tells me that his professors have scant sympathy for my pet peeve...
...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...
...and he would clearly welcome a judge-made homosexual revolution...
...Did you hear what the professor said...
...I respond by saying that this is exactly the kind of thing you'd expect law professors to say...
...Some of us had even imagined that courts were essentially conservative institutions, "the least dangerous branch," as a legal scholar once called them...
...Perhaps Plato, who disliked democracy and wanted society to be governed by philosophical rulers, would have been tickled by this development...
...I am similarly offended by the ideology of judicial imperialism, which seems to devalue my years of legislative suffering and sacrifice...
...The Second Circuit held that New York's ban was unconstitutional on equal-protection grounds, since New York permits the termination of life-saving efforts in extreme situations, and the court could see no substantial difference between letting someone die and making someone die...
...What an amazing thing for a constitutional scholar to applaud...
...that the Constitution had enacted this very agenda a century or two earlier, even though, curiously, nobody had noticed this fact until the day before yesterday...
...For years I have been an underpaid columnist, yet within a short time my son can look forward to being an overpaid lawyer...
...As he makes clear in many writings, Dworkin approves of the abortion revolution the Court made in 1973...
...Hence judges become dependent on the world of law professors, a world that abounds in creative and leisured intellectuals...
...But if it does, judges will have brought about another social revolution...
...Before Professor Dworkin broke the news, no one had told us that the United States Supreme Court belongs to the same institutional genus as Plato's philosopher-kings and Lenin's vanguard party, undemocratic elites who know better than the people what is in the people's best interests...
...It is extremely unlikely that cultural liberalism could enact its agenda through normal democratic processes, that is, by winning elections and passing bills in Congress and state legislatures...
...In other words, his revolutionary agenda is the agenda of cultural liberalism, and his elaborate, legal-philosophical reasoning allows him to arrive at the same conclusions the typical cultural liberal arrives at through sheer predilection...
...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...
...Of course, democracy will no longer be thriving...
...We thought that revolutions, if they must take place, should be the creation of society itself, perhaps with the assistance of democratically elected officials...
...Most of us benighted folks-neither lawyers nor professors of constitutional law-were not aware that one of the functions of the Supreme Court is to make social revolutions...
Vol. 123 • October 1996 • No. 18
