All Commentary
Tuesday, August 1, 1995

A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society; and Recapturing the Constitution: Race, Religion, and Abortion Reconsidered

What Has Happened to the Rule of Law?

The second part of the twentieth century has witnessed a marked decline in the rule of law. The legal profession appears to be out of control as society becomes ever more litigious and the guarantees of the Constitution are ignored. What happened to the United States Tocqueville visited where “that numerous and turbulent multitude does not exist who, regarding the law as their natural enemy, look upon it with fear and distrust”? Professor Mary Ann Glendon of the Harvard Law School in her new book, A Nation Under Lawyers, does much to answer this vexatious question.

In order to ascertain when and how the rule of law was lost, Glendon looks to the past. She ties the litigiousness and judicial activism of our time to the legal conventions of immigrants. The gentleman’s ethic which prevailed at the turn of the century stressed ascendancy of the rule of law even if it meant refusing the wishes of a client. This was replaced with an old-world ethic that placed greater emphasis on the lawyer’s loyalty to his client than to the system.

Glendon marks the 1954 school desegregation case, Brown v. Board of Education, as the beginning of the present era of judicial activism. From this landmark decision that took the courts into the ordinary affairs of local governments, the “Warren Court children” were born. This generation that entered law school in the late ’50s and early ’60s no longer saw the law as the collected wisdom of the past that safeguarded our scheme of ordered liberty. On the contrary, they viewed the law as a means to bypass the political process and effect radical social change.

Glendon sees the media as exacerbating the problem by glorifying the judges and lawyers, who through the judicial process, sought to engineer a better world. Judges, in Glendon’s words, “began to taste the once-forbidden fruit of emancipation from the constraints” posed by the rule of law. Qualities such as impartiality and an adherence to precedent that made a good judge at the beginning of the century gave way to a new set of principles that called for the courts to be the champions of the underdog.

Glendon ends the book on a high note, recounting how today’s law students are spurning the utopianism of the Warren Court children for a more traditional legal system. And it is only tradition that Glendon sees as the means to recover the impartiality and restraint that have been lost over the years of radical experimentation.

Though radical experimentation has come from all members of the legal profession, the most damage to the rule of law has been wrought by the Supreme Court through constitutional interpretation. Since FDR’s New Deal Court let the genie out of the bottle, scarcely has the law restrained the action of the federal government. This demise of constitutional government is examined in Stephen B. Presser’s new book, Recapturing the Constitution: Race, Religion, and Abortion Reconsidered.

Rather than appeal to the “original intentions” of the Framers as many conservative members of the academy do, Presser advocates “original understanding.” Though at first this sounds like semantic hairsplitting, Presser bases his view of the Constitution cogently around this doctrine. Instead of simply looking at the text of the Constitution, one must look “to the context in which it was drafted.” Thus, the attitudes and understanding of the ratifiers are paramount.

For example, the First Amendment’s prohibition against the establishment of religion does not erect a great wall between church and state. After giving a fine history of the changes in the wording of the First Amendment as it was being drafted in the first Congress, Presser concludes, as did the legendary Justice Joseph Story, that the amendment was only to “exclude all rivalry among Christian sects. . . .” Insofar as the founding generation was overwhelmingly Christian and recognized the inseparability of religion and morality, they would not have countenanced the Jeffersonian wall of separation.

Rather than stopping with the doctrine of original understanding, Presser goes on to embrace natural law in the form of substantive due process. Substantive due process, in the words of legal historian Kermit L. Hall, means that there exists an irreducible sum of rights with which government cannot interfere. Under substantive due process, the courts struck down much legislation dealing with the regulation of the public’s health, welfare, and morals as well as part of the New Deal.

By embracing this doctrine, Presser violates his own principle of original understanding. Rather than recapturing the Constitution, ambiguous doctrines of natural law and substantive due process, despite their salutary results until 1937, give the courts carte blanche to make the Constitution mean whatever they want. The acceptance of this doctrine is the only major flaw in the book.

As does Glendon in her book, Presser marks Brown v. Board of Education as a watershed event. From this case onward, Presser outlines how the social sciences became more important in adjudication than an understanding of constitutional law. This absence of a traditional understanding of the Constitution naturally results in decisions like Roe v. Wade.

Presser concludes that Justice Blackmun’s declaring abortion to be a fundamental right in that landmark case caused a deep rift in society that should have been settled through the political process as the Framers intended. Presser sees abortion, like school prayer, as failing within the gamut of state and local authority. The Court’s usurpation of legislative authority in matters dealing with race, religion, and abortion have, according to Presser, moved us further away from the rule of law and toward the rule of man.

In short, Presser provides a thought-provoking examination of the perversion of the Constitution that the layman can comprehend. Like Glendon, he sees the restoration of the rule of law resting with tradition. It was, after all, for our traditional rights as Englishmen that the colonists fought. And only a clear understanding of this tradition can restore our republican form of government and the corresponding rule of law. []

Mr. Watkins, an assistant editor for The Freeman, begins law school this month.

  • William J. Watkins, Jr. is a Research Fellow at The Independent Institute. He received his B.A. in history and German summa cum laude from Clemson University and his J.D. cum laude from the University of South Carolina School of Law. He is a former law clerk to Judge William B. Traxler, Jr. of the U.S. Court of Appeals for the Fourth Circuit, and he has served as Assistant U.S. Attorney, Associate at Womble Carlyle Sandridge & Rice, and Associate with Leatherwood Walker Todd & Mann.