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The Sad Career of Justice Stephen Breyer

In Academia, Arts & Letters, Book Reviews, Books, Essays, Humanities, Jurisprudence, Law, Politics on May 4, 2016 at 6:45 am

Allen 2

This essay originally appeared here in The Imaginative Conservative.

It is an unfortunate truism that the longer one remains in the legal profession, the less educated he becomes. The law, as the saying goes, is a jealous mistress: She does not permit solicitors to invest time in rival passions—e.g., philosophy, history, and literature—let alone cultivate the niceties and nuances of expression that distinguish the lettered from the unlettered. It is tough to read Dickens and Henry James when you have got billable hours to meet, and slogging through appellate cases rewards only a rudimentary, distilled understanding of principles that great minds have reworked for centuries. There is simply not enough time for punctual judges and practicing attorneys to master biblical hermeneutics or study Shakespeare, and developing the whole person—learning to live well and wisely—falls far beyond the scope of legal practice and proficiency.

Justice Stephen Breyer was off to a promising start to an educated life when he studied philosophy at Stanford University and then attended Oxford University as a Marshall Scholar. He graduated from Harvard Law School in 1964 and began his legal career as a clerk to Justice Arthur J. Goldberg of the United States Supreme Court. In 1967 Breyer entered the academy—first Harvard Law School and later Harvard’s Kennedy School of Government—where he focused on administrative law. His scholarship was neither groundbreaking nor exceptional, but it was sufficient to secure him a full professorship and to demonstrate a superior understanding of an unpopular subject. Breyer was, at this time, becoming the welcome exception: a literate lawyer.

Then things went wrong, gradually and by slow degrees. Breyer took the bench on the United States Court of Appeals for the First Circuit in 1980 and, thereafter, became less interesting and bookish and more programmatic and expedient. Perhaps he was overworked or overtired, inundated with cases and bogged down by the mostly mundane tasks of judging. Perhaps, as should be expected, he paid more attention to his docket than to the philosophers who had enriched his thinking during his youth. Perhaps he never wanted the life of a scholar and previously had spilled his ink to game the ranks of the professoriate, an arduous scheming no longer necessary once he had achieved a position with life tenure and nearly unparalleled retirement benefits. Perhaps a want of constructive idleness and leisured meditation hardened his contemplative faculties. Whatever the reason, Breyer’s scholarship fell off, his writing suffered, and the lamp of his imagination went out. He poured his soul into cases.

Breyer did manage to exhibit flashes of his former acumen in Active Liberty (Vintage, 2005), but his latest book, The Court and the World (Knopf, 2015), notwithstanding the cheering pother it’s elicited, is a snoozer and not particularly edifying. The introduction consists of the kind of tedious mapping and framing that only the student editors of law reviews would tolerate. Breyer separates the book into four parts. Part I addresses the protection of civil liberties during our age of terrorism and constant security threats; Part II, statutory interpretation; Part III, the interpretation of treaties and the lawmaking powers of the president and Congress; and Part IV, communication between jurists from different jurisdictions across the planet. Two animating themes underlie each part: the meaning and import of the rule of law in a globalized world and the incorporation of foreign trends and norms into the legal system of the United States. The latter theme involves principles of comity, or the idea that one jurisdiction will give weight, deference, and authority to the acts, orders, or rulings of another jurisdiction. Breyer’s thesis is that “the best way to preserve American constitutional values (a major objective that I hold in common with those who fear the influence of foreign law) is to meet the challenges that the world, as reflected in concrete cases on our docket, actually presents. Doing so necessarily requires greater, not less, awareness of what is happening around us.”[1] Standing alone, this declaration seems benign and uncontroversial, hardly worth sustained critique or impassioned defense. Yet something is rotten in the state of Denmark, and arguments that seem nonthreatening are not always as they seem.

This essay will analyze Breyer’s attempts to realize his thesis in The Court and the World and raise questions regarding whether he has, in the way he celebrates the transnational turn in judging, betrayed his own provinciality and proven his own misunderstanding of foreign developments as he puts paternalistic presuppositions on display. Rather than modeling a greater awareness of “what is happening around us”—his stated goal—Breyer demonstrates a profound unawareness of international trends and norms, not to mention a paternalistic view of the role of American courts in relation to the cultures and values of peoples beyond American borders.

I will suggest, as well, that Breyer advocates approaches to judging that, if widely followed and accepted, could fundamentally undermine his notions of comity and international interdependence; thus, his jural prescriptions, such as they are, ought to be approached with extreme caution if not rejected outright, at least until a better case can be made for them.[2] Although Breyer purports that he “does not pretend to offer any ultimate or even provisional solutions”[3] to the challenges presented by globalization, or that he “merely surveys what is for many an unfamiliar and still-changing legal landscape,”[4] he champions certain methods and viewpoints that lead inexorably to predictable and definite outcomes.[5]

My chief criticisms are threefold: (1) Breyer affirms the obvious and, thus, contributes nothing meaningful or constructive to our ongoing conversation about the role of foreign law in domestic courts; (2) he defends a transnational turn in jurisprudence at the expense of the liberal, democratic principles he purports to value; and (3) his lack of historical and philosophical understanding, or his refusal or inability to employ that understanding in the service of rational argument in this book, undermines his reliability and undercuts any lasting merit his arguments for transnational adjudication and jurisprudence might enjoy. These are not my only concerns about Breyer and his latest book, but a commentator nervous about the prestige and grandeur of the High Court must shrink from enumerating every failure of one of its most eminent justices. As I am not motivated by pure animus or set in the way of critique, I do praise Breyer’s work where praise is due, in particular regarding his sensible apprehensions about the scope of presidential power, especially during wartime.

The gravamen of Breyer’s argument is that because of communications technology, ease of travel, and globalization, the influence of foreign law on United States courts is on the rise. That is indisputable and self-evident. No reasonable person doubts that we live in “an ever more interdependent world—a world of instant communications and commerce, and shared problems of (for example) security, the environment, health, and trade, all of which ever more pervasively link individuals without regard to national boundaries.”[6] It does not follow from this obvious given, however, that a knowledge of foreign laws and legal institutions should be accompanied by their binding application in the courts of our nation, or that any hesitance to embrace unprecedented levels of extraterritorial-based experimentation with the domestic legal system constitutes, in Breyer’s words, “stand[ing] on the sidelines” or a “withdraw from the international efforts to resolve the commercial, environmental, and security problems of an increasingly interdependent world.”[7] Such language borders on bad-faith and casts doubt on Breyer’s credibility, integrity, and motivation. After all, Breyer does not attempt to explain or even address the potential arguments of his opponents, who are never named in the text (unless they are his colleagues on the bench), nor does he concede when his opponents’ points are valid. Instead, he militates against straw men and caricatured positions that, in his telling, stand in the way of necessary progress and experimentation. Lest I surrender to the same dishonest tactics here, I turn now to key examples from Breyer’s chapters to substantiate my three presiding criticisms.

It is helpful at the outset to note a structural dichotomy that frames Breyer’s argument. “[T]he important divisions in the world,” Breyer opines, “are not geographical, racial, or religious but between those who believe in a rule of law and those who do not.”[8] With this tidy summation Breyer presses into two sides all the world’s religious varieties and cultural multiplicities, each with their own normative codes and modes of participation in government and politics. The risk of Breyer’s oppositional pairing is plain: inattention to nuanced realities, simplification of complex systems and beliefs, reduction of complicated theories, neglect of rivaling perspectives, and so forth. That is not to say such casual coupling has nothing to recommend it; sometimes easy heuristics and graspable models are helpful. Consider, for instance, Aristotle’s ten predicates or the hypothetical State of Nature popularized by Hobbes and Locke. Yet a justice on the United States Supreme Court who urges American judges “to understand and to appropriately apply international and foreign law”[9] should avoid the type of essentializing that subsumes important, distinguishing characteristics of diverse legal systems under two broad categories, one good and one bad. This simplistic dichotomy does manifest injustice to those cultures and communities—many of them more traditionalist, religious, localist, and conservative than their European and American neighbors—which consider themselves to be governed by the rule of law, however different that version of the rule of law may seem from the standards and structures figured in Breyer’s operative paradigm.

To his credit, Breyer is upfront about his assumption that “the United States will remain a preeminent world power, due to its military and economic strength and the prestige of certain features of American life, including our long experience in creating, maintaining, and developing a fairly stable constitutional system of government.”[10] And he is likely right on that score as a matter of factual probability. He also exhibits an endearing pride when he intones that the American legal system has “allowed a large multiracial, multiethnic, and multireligious population to govern itself democratically while protecting basic human rights and resolving disputes under a rule of law.”[11] Yet inherent in his commendation of the American legal system is the unexamined presumption that the legal norms of other, more traditionalist places and cultures are inferior to those of the United States or else poor foundations for the rule of law in practice. “When, therefore, I use the frequently heard term interdependence,” Breyer avers, “it is with these assumptions”—i.e., those assumptions which affirm the superiority and staying power of the American legal system–“firmly in mind.”[12] These assumptions, however valid they may seem at first blush, signal a telling paradox, if that is the right word. To wit, Breyer admires the tolerance and accommodation made possible by liberalism and democratic constitutionalism, but in prioritizing tolerance and accommodation he would open the American legal system to their opposite. Developing in tandem with the proliferation of transnational norms and institutions is the equally rapid spread of radicalism and reaction,[13] exemplified most notably in Islamic terrorism and Sharia Law but evident to a lesser degree in the pseudo-nationalist movements and organizations percolating across Europe. Breyer’s call for the adoption of foreign laws and legal norms could mean the eventual obliteration of the very flexibility and latitude that enable jurists like him to look abroad for instruction and guidance.

Breyer is right in one vital respect: Interdependence has a “particularly worrisome manifestation”[14] as a result of national-security threats, the judicial response to which has been to increase presidential powers at the expense of constitutional fidelity. Breyer’s thesis for Part One, which addresses national security and presidential power, is laudably direct and succinct:

“This Part will show the Court steadily more willing to intervene and review presidential decisions affecting national security, even to the point of finding a related presidential action unconstitutional. What is notable is that this progression toward assertiveness has occurred even as threats to national security have become more international, indefinite with respect to manner, and uncertain with respect to time. Indeed, threats today are less likely to arise out of a declaration of war by another sovereign power and more likely to be posed by stateless international terrorist networks. They are also more likely to last for many years, perhaps indefinitely. The change in the Court’s approach together with the change in circumstances is, I would argue, no mere coincidence.”[15]

What follows this thesis is less direct and succinct as Breyer undertakes to supply an abbreviated history of the political-question doctrine and its implications for the scope of executive authority.

To prove the relevance and significance of the political-question doctrine to current affairs, Breyer briefly discusses Zivotofsky v. Clinton (2012),[16] a recent case in which the United States Supreme Court (hereinafter sometimes referred to as “the Court”) determined that issues pertaining to passport regulation were not purely political questions outside the province of the judiciary. The principal focus of this section, however, is historical, surveying with sweeping strokes everything from Abraham Lincoln’s suspension of habeas corpus to Woodrow Wilson’s prosecution of dissenters during wartime to Harry Truman’s seizure of steel mills, which were private property. Accordingly, Breyer analyzes United States v. Curtiss-Wright Export Corp. (1936) (which held, inter alia, that the President of the United States is constitutionally vested with plenary executive authority over certain foreign or external affairs; that the powers of external sovereignty enjoyed by the United States federal government do not depend on affirmative grants of the United States Constitution; and that the United States Constitution, and the laws passed pursuant thereto, have no force in foreign territory);[17] Korematsu v. United States (1944) (which held that the executive exclusion orders providing for the detainment of Fred Korematsu, an American citizen of Japanese descent, were constitutional);[18] and Ex parte Quirin (1942) (which upheld as constitutional the jurisdiction of U.S. military tribunals—created by executive order—used to prosecute German saboteurs in the United States).[19] Under these cases, the president enjoys wide discretion and privilege in matters of national security and foreign affairs. If Breyer’s summaries of these cases repay rereadings, it is because they are useful guides to landmark cases—but no more useful than any of the student briefs or encyclopedia entries that can be found online.

To his credit, in my view, Breyer rejects the guiding rationale in Curtiss-Wright, Korematsu, and Quirin and finds wisdom in Youngstown Sheet & Tube Co. v. Sawyer (1952), which held that the president did not possess the inherent power, purportedly in the public interest, to order the Secretary of Commerce, during wartime, to seize the private property of steel companies that were wrangling over labor disputes. Youngstown Sheet, whatever else it stands for, represents a stark departure from the mode of absolute deference to executive power adopted and perpetuated by the Court in earlier eras.[20] Why did the Court reverse course in Youngstown Sheet? According to Breyer, “Judges are inevitably creatures of their times, and the Steel Seizure justices had just seen totalitarian regimes destroy individual liberty in Europe. While they did not necessarily fear the rise of an American dictator, knowledge of what happened to other democratic societies must have been sobering.”[21] This explanation would have us believe that a mere awareness of foreign affairs—not fidelity to the terms of the Constitution—motivated the decision in Youngstown Sheet. Although the events of World War One and World War Two and other twentieth-century geopolitical struggles no doubt loomed large in American memory, Justice Black’s opinion in Youngstown Sheet, as well as the concurrences with that opinion, grounded themselves in the text of the Constitution, not in extraconstitutional historical analysis or commentary on current events.

Breyer acknowledges that presidents will, as a matter of course, seek to exercise vast authority to resolve urgent conflicts, but he believes the Court’s institutional duty is to ensure that executive power is prudently circumscribed. “We should,” he says, “expect presidents to make broad assertions of presidential authority, especially during an emergency, when in the rush of immediate events they face immediate problems requiring immediate solutions. The Court, by contrast, playing a different institutional role, can and must take a longer view, looking back to the Founding, across the nation’s history, and sometimes into the unforeseeable future. No matter how limited an opinion the justices try to write, their holdings will be taken as precedent, perhaps for a very long time.”[22] Looking to history and tradition to demarcate executive power is, of course, good, but Breyer appears to disregard the fact that constitutional interpretation—the way in which provisions of the constitution are read and applied by judges and justices—is embedded in historical networks and processes. A judge or justice may not undertake historical inquiry that is divorced from the text of the Constitution, which must provide the framework and serve as the source for judicial decisions no matter the era and no matter the sociopolitical exigencies. If history were to instruct judges and justices that certain provisions of the Constitution were unwise or improper, judges and justices would nevertheless be bound by those provisions and could not remake or ignore them based on their personal interpretations of historical events. Reworking or revising the text of the Constitution falls to the legislature, which is electorally accountable to the citizens, whose cultures and values, which are likewise historically informed, shape and guide the amendment process recognized in the Constitution.

Breyer suggests that the so-called “Guantanamo Bay Cases”—Rasul v. Bush (2004),[23] Hamdi v. Rumsfeld (2004),[24] Hamdan v. Rumsfeld (2006),[25] and Boumediene v. Bush (2008)[26]—represent a new trend, or “the culmination of an evolution that may continue.”[27] Advocates for some Guantanamo Bay detainees had, during the presidency of George W. Bush, begun filing writs of habeas corpus and other, similar actions in the courts of the United States, challenging the detainees’ imprisonment on foreign soil as well as the government’s position that the detainees were not entitled to, and thus not denied, access to the legal system of the United States. Although these cases reaffirmed the longstanding authority of the executive branch in certain areas, they also pushed back against executive powers, vesting in the detainees the right to challenge their detention in the legal system of the United States. These cases collectively established that individuals detained as enemy combatants were entitled to due process of law, notwithstanding their citizenship or executive prerogative, and they effectively curbed the government abuse occasioned by special military commissions and the suspension of habeas corpus. The Court ensured that the rule of law, however strained, obtained in times of war as in times of peace. The days of Curtiss-Wright and Korematsu were, the Court proved, no longer with us. Breyer attributes this development to a growing awareness of other countries and cultures. “The intrusion of the world’s realities into our national life,” he says to this end, “no longer seemed, as it once had, such an anomalous thing, justifying anomalous results.”[28]

Justice Breyer is correct that the “world’s realities” have forced a rethinking of the judicial role and judicial authority, but, again, he closes his eyes to other realities, namely, those demonstrating how constitutionally limited the judicial role and judicial authority are and must be. He characterizes the allegedly new approach as “engagement,” as if, in this particular context, it were not already the prescribed role of the judicial power under the Constitution. “Rather than sit on the sidelines,” Breyer says, “and declare that cases of this kind pose an unreviewable ‘political question,’ or take jurisdiction but ultimately find for the President or Congress as a matter of course, today’s Court will be more engaged when security efforts clash with other constitutional guarantees. It will listen to the government and consider its arguments, but it will not rubber-stamp every decision.”[29] The problem with this characterization is twofold: first, it suggests that the Court is doing something that the Constitution does not require the Court to do and ignores the possibility that the Court in earlier eras might have been acting unfaithfully to the text of the Constitution as the justices shirked their constitutional duties; and second, it could operate as a basis for validating judicial “engagement”—one might say “activism”—in other areas such as the Fourteenth Amendment, under which the Court has forged a grotesque line of precedent, supposedly emanating from the substantive-due-process and equal-protection clauses, that has less textual basis in the Constitution than the sort of judicial engagement manifest in the Guantanamo Bay Cases.

However appropriate Breyer’s concerns about presidential power may be, they are undercut by his reticence to admit that our own Constitution has equipped us with adequate remedies for the problem. He preaches that, in the future, the Court must achieve a “greater willingness to understand and take account of both the world and of the law beyond our borders,” as well as a “readiness to meet the various challenges of doing so,”[30] as though the Guantanamo Bay Cases had nothing to do with the laws within our borders and everything to do with the laws beyond our borders. Leaving aside the problematic jurisdictional and legal status of Guantanamo Bay, a military prison located within the borders of another nation—one that is not an ally of the United States—the fact of the matter is that the Guantanamo Bay Cases involved disputes over provisions in the United States Constitution and the laws of the United States. The Court did not divine its conclusions from, or predicate its rationale on, some greater understanding of the world and extraterritorial law. Thus, Breyer overstates the importance of interdependence in these cases.[31] Although it is true that “[o]ther courts and legislatures have faced and are facing similar threats to their nations’ peace and safety” and that those institutions “have engaged in similar projects to those before our Court of balancing security and liberty,” nothing those courts or legislatures say or do is binding on the courts in the United States,[32] even if their solutions, which Breyer does not specify, “serve as constructive examples that our Court could put to good use.”[33] Nothing in Part I of Breyer’s book supports this conclusion. Instead, that portion of the book reveals how the laws of the United States have, over time and despite setbacks and mistakes, worked better than foreign laws to check power grabs and mediate conflicts as the Court gradually came to adopt rather than disregard certain principles enshrined in the Constitution. If anything, foreign law in this section of the book—as evidenced by the legal architecture of the 20th century totalitarian regimes that loom in the background of Breyer’s narrative—serves as an illustration of what not to mimic and incorporate into the American system.

I pretermit examination of Part II of The Court and the World because its thesis—that courts in determining the reach of domestic statutes must consider the effects of doing so on foreign laws and practices[34]—is straightforward and unremarkable. Moreover, its lengthy treatment of the Alien Tort Statute and other such legal texts is unlikely to interest those unfamiliar with or uninterested in that subject. This section of the book, in which the focus shifts from constitutional analysis to statutory construction, bears out what Breyer means by comity. Breyer urges the United States Supreme Court, and presumably other, inferior courts, “not simply to avoid conflict but also to harmonize analogous American and foreign law so that the systems, taken together, could work more effectively to achieve common aims.”[35] This is an expansive interpretation of comity in that it encourages judges not only “to ensure that domestic and foreign laws d[o] not impose contradictory duties upon the same individual,”[36] the traditional view of comity, but also that judges “increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web.”[37] To achieve comity, so understood, judges must familiarize themselves with foreign laws and customs and can do so through academic journals, treatises, and articles.[38] This advice gestures towards Breyer’s proposal that American judges consider themselves, and conduct themselves as, diplomats.

This proposal, which takes shape in Part III and IV, is not as brazen as it may initially seem because Breyer turns his eye on the role that treaties and other international agreements have played in the domestic legal system. A feature of international law with felt ramifications on the everyday lives and economies of domestic citizens, treaties force judges to contemplate international relationships. Presidents have, over several decades, exercised treaty powers more frequently and on subject matters increasingly more domestic. They have created new agencies that promulgate and enforce rules and regulations, thus leading to new and bigger bureaucracies. “How has the Court’s approach to the interpretation of international agreements adapted to these changes?” Breyer asks.[39] His answer, in part, is that “[i]t has become more important to find interpretative solutions that are workable, thereby showing that a rule of law itself can work.”[40] “[I]t has,” he adds, “become more important for the courts to understand the details of foreign and international rules, laws, and practices.”[41] Breyer’s substantiates this claim with discussions of child custody, international arbitration, and the delegation of authority from domestic to international bodies created by treaty or other such mechanisms.

A certain smugness inheres in Breyer’s remark that “judges who would hesitate to consider decisions of foreign courts when interpreting the American Constitution do not hesitate to consult such decisions when treaties are in question.”[42] Surely, though, Breyer knows the difference between incorporating foreign legal principles into opinions when those principles have merely persuasive value (and no binding operation) in a case and deciphering the outcome-determinative rules in treaties that are at issue in the case as well as a valid source of law under the Constitution.[43] There is a palpable difference between judges in a death-penalty case considering data about how many countries recognize capital punishment[44] and judges in a child-abduction case interpreting the Hague Convention on the Civil Aspects of International Child Abduction, to which the United States is a party. The latter activity has caused the Court to venture “into uncharted legal territories, reckoning with (and at times applying) foreign laws concerning what once were almost exclusively local matters.”[45] It stands to reason that the Court would consider how judges in other countries, bound by the same child-abduction treaty, would interpret the text of that treaty, but why should the Court therefore consider another country’s capital-punishment laws to which the United States never submitted itself, by treaty or otherwise?

Breyer is on better footing in his discussion of the mandatory arbitration provided for in international treaties, which, as they multiply, will increasingly require interpretation by American judges.[46] For obvious reasons, this method of resolving transnational commercial disputes has become more common than court litigation. “[W]hen borders are crossed,” Breyer explains, “arbitration offers the crucially important advantage of forum neutrality—parties can appear before a neutral decision maker without having to be hauled into the other’s courts. The practice is therefore particularly popular among investors in developing countries, who are often skeptical of the local court systems.”[47] It can be vexing to resolve complex disputes between private parties and nation-states for numerous reasons, chief among them being the lack of a widely accepted forum for judicial review;[48] furthermore, the jurisdictional effects of economic globalization are not yet fully known, a fact Breyer acknowledges.[49] Thus, alternative dispute resolution, including and especially arbitration, seems like an area in which Breyer could have done more clarifying and elucidating. With perhaps his strongest points coming in his chapter on arbitration, it’s a shame he spends so little time on the subject, which is rapidly evolving and becoming ever more important to the economic activities not just of governments and large corporations, but of private individuals and small businesses.

It is the matter of socioeconomic, cultural, and political evolution that betrays Breyer’s provincial paternalism. Of course times are changing. Yet when Breyer announces that “[c]hange is upon us,”[50] he seems blissfully unaware of the nature of the change. He is never recklessly explicit about it, but he appears to imply that the United States ought to follow liberal trends that he apparently sees in other countries.[51] If he is correct that “the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad,”[52] then, depending on what he means by “consider,” we may need to prepare ourselves for, to name one possibility, radical Islamic jurisprudence or the spread of intransigent government and messianic statism. Or if Breyer finds unpalatable the form of Islamic law that ISIS, Boko Haram, al-Qaeda, al-Shabaab, or the al-Nusra Front seek to impose on their subjects, perhaps he would prefer China’s two-child policy; India’s abolition of the jury trial; Singapore’s criminalization of littering, chewing bubble-gum, and possessing pornography; or laws prohibiting homosexual activity—some of which carry the death penalty for their violation—in countries from Afghanistan and Saudi Arabia to Dominica and Malawi. I express no opinion here on the value or merit of any such laws outside the United States of America. I raise these examples only to demonstrate the implications and potential ramifications of Breyer’s arguments, which are intended to promote a different vision.

In Breyer’s paradigm “foreign” and “international” appear to mean nothing more than Western European, since he fails or refuses to consider the legal institutions of any Asian, South American, Middle Eastern (Israel excluded), Russian, or African nations. Nevertheless, Breyer seems unaware of the direction the political winds are blowing in the actual flesh-and-blood Europe. Breyer does not strike me as one who would welcome the construction of the chain-link, razor-wire fence—authorized by Hungarian President Viktor Orban—that stretches more than 100 miles along the border of Hungary. Nor do Breyer’s views seem compatible with those of Marine Le Pen and the French National Front, or Laszlo Toroczkai, the youthful Hungarian mayor of Asotthalom, or Geert Wilders, the Dutch founder of the Party for Freedom. Breyer wants Americans to look to Europe to undermine nationalism, yet nationalism is on the rise in Europe.

The French have banned face-covering attire so that Islamic women may not wear a burqa or a niqab. The Swiss People’s Party has become increasingly popular, the Swiss having begun restricting immigration under a quotas law established by a 2014 referendum. The effectiveness and long-term viability of treaties such as the Schengen Agreement among European nations has been called into question. Secessionist movements have sprung up in Scotland, Catalonia, Flanders, and Venetia, and the United Kingdom will soon hold a referendum to determine whether it will remain a member of the European Union, whose future is in jeopardy, as pointedly demonstrated by Jürgen Habermas’s recent plea for European solidarity.[53] The unintended irony underpinning Breyer’s love affair with Western Europe is that, in urging the gradual adoption and enduring “consideration” of foreign laws by American judges, he has laid the groundwork for measures at odds with his liberal, democratic principles.

A vital sense of the interconnectedness of nations has impressed itself deeply in the imagination of certain elites in the United States. It is liable to the type of paternalism exhibited in The Court and the World. In some circles the mere mention of foreign norms or institutions confers upon opinions a prestige too quickly confounded with profundity and intelligence. Even so, the discriminating reader will find little profound in Breyer’s book. Of Breyer’s two chief shortcomings, that of stating the obvious (globalization has caused foreign law to play new roles in domestic controversies) and that of opening domestic courts to the incorporation of foreign law notwithstanding the relevant terms of domestic law or the restraints on such incorporation established by statute or the Constitution, the latter shortcoming is more damaging. Domestic law has mechanisms for dealing with foreign laws. Those mechanisms resolved most of the cases and controversies Breyer discusses in the book. Thus, Breyer hardly replenishes the field of transnational adjudication with fresh insight or makes a compelling case for the embrace of foreign law.

Even regarding the death penalty, Breyer’s advice to look to foreign law for guidance could backfire. According to Amnesty International, executions worldwide were up 28% in 2014.[54] A quick appraisal of Amnesty International’s country profiles on the death penalty reveals that those countries which have abolished the death penalty are experiencing population decline.[55] The death penalty remains popular and prevalent in emerging countries.

Despite his grand vision of judges as diplomats who divine from foreign principles the right and proper course for social action within their jurisdiction,[56] Breyer gently insists on merely humble objectives, muting the vast implications of his argument with careful qualifications such as this one:

“This book is based upon my experience as a judge. It does not survey the whole of international law or even of foreign law as it affects Americans. Nor does it comprehensively describe the instances in which courts must deal with questions involving that law. It illustrates and explains what I have seen and why I believe there is an ever-growing need for American courts to develop an understanding of, and working relationships with, foreign courts and legal institutions.”[57]

Breyer’s description here of what his book does not do is also an adumbration of what his book cannot do: no single book could survey the whole of international law or foreign law as it affects Americans; no single book could comprehensively describe the interaction of international or foreign law with American courts. Nor could Breyer speak from the perspective of someone not himself. Few people, I suspect, object to gaining a greater understanding of foreign courts and legal institutions. Yet the phrase “working relationship with foreign courts and legal institutions” remains problematic. What does it mean? Breyer’s book provides no shortage of possible answers, but the inquisitive reader will come away dissatisfied at the want of clarity.

Breyer’s arguments, finally, are as nothing without the sonorous prose of a Justice Holmes or Justice Cardozo. Anyone could have written this book, which should have been set apart by the fact that its author is a sitting justice. Breyer tells us nothing any close observer of the Court or the legal system could not have said and likely would have said with superior skill and rhetoric. He teases us with passing mention to interactions that are “typically invisible to the general public,”[58] but those interactions remain equally invisible in the book; there are no details about backroom deliberations, about how or why judges and justices compromise their hermeneutics or jurisprudence in the face of international pressure or as a result of some “global” perspective. We’re not told about our Supreme Court justices’ private discussions, research methodologies, philosophical influences, reading habits, or reliance (or non-reliance, as the case may be) on law clerks, amicus briefs, historical documents, or foreign scholarship.

No working judge or lawyer should read this book because most of its subject matter is already recognizable in everyday legal practice to anyone with a basic awareness of professional trends. Those without a legal background will find nothing here that is not already presented more skillfully and comprehensively in casebooks or textbooks. Breyer’s simplistic method (“look abroad, friend”) would have unintended consequences incompatible with his liberal and democratic sensibilities. The Court and the World is a profound waste of effort because it belies its own thesis. This is destined to become “just another book” written by a judge. One might object that a book so unimportant warrants but a short review. On the contrary, a longer review has the benefit of laying bare the many reasons why buying and reading this book is unnecessary. One wonders whether the young, more philosophical Breyer would have developed a more striking argument for his views on transnationalism, or whether he would have inhabited these views at all.

 

Notes:

[1] Stephen Breyer, The Court and the World: American Law and the New Global Realities (New York: Alfred A. Knopf, 2015), 8.

[2] I do not mean this as an insult. Breyer himself encourages others “to find better and specific responses” than he can offer from his limited vantage point as a justice on the United States Supreme Court. Ibid., 6.

[3] Ibid., 281.

[4] Ibid.

[5] Breyer can be impressively subtle with his advocacy. For example, when he asserts that “our federal courts may eventually have to take account of their relationships with foreign institutions just as they now take account of their relationships with state courts and other American federal and state legal institutions,” he appears, in context and in light of his arguments throughout the book, to mean that federal courts ought to take account of their relationships with foreign institutions. Ibid., 7. The vague verbal construction “take account of” begs the question: What does Breyer have in mind? To “take account of” something seems innocuous and not quite the same as “utilizing,” “following,” or “employing.” The argument that courts ought to “pay attention to” foreign law is not remarkable. It becomes clear, however, as Breyer lays out his argument, that “take account of” means something more like the deliberate implementation and incorporation of foreign laws and norms in the American legal system, a far more controversial notion than simply to notice or observe foreign law with objective distance.

[6] Ibid., 4.

[7] Ibid., 235.

[8] Ibid., 284.

[9] Ibid., 7.

[10] Ibid., 4.

[11] Ibid.

[12] Ibid.

[13] I use the term “reaction” or “reactionary” differently from the way in which that term is employed by, say, Paul Elmer More or, more recently, Mel Bradford and John Lukacs. A full explanation of the manner in which I use the term here would exceed the scope of the piece, even if it would yield valuable returns.

[14] Breyer, The Court and the World, 81.

[15] Ibid., 13.

[16] 132 S. Ct. 1421, 566 U.S. ___, 182 L. Ed. 2d 423 (2012).

[17] 299 U.S. 304, 318-19 (1936).

[18] 323 U.S. 214, 221-22 (1944). Of this holding, Breyer states, “So what happened to civil liberties? How could the Court have reached such a decision? The question is a fair one, particularly since the majority included Justices Black, Douglas, Frankfurter, and Reed, all of whom later joined the unanimous Brown v. Board of Education decision, striking down racial segregation as unconstitutional. The most convincing, or perhaps charitable, explanation that I can find is that the majority, while thinking the government wrong in Korematsu itself, feared that saying so would only lead to other such cases in which the government was right, and that the Court would have no way of telling one kind from the other. Someone has to run a war. In this case, it would either be FDR or the Court. Seeing the folly of the latter choice, the Court elected not to question the President’s actions. This is an argument, baldly put, for broad, virtually uncheckable war powers. But as we have seen, it resembles what many presidents may actually have thought in time of war.” Breyer, The Court and The World, 36.

[19] 317 U.S. 1, 63 S. Ct. 1 (1942) (ruling in advance of a full opinion); 317 U.S. 1, 24-29, 63 S. Ct. 2 (1942) (ruling with full opinion).

[20] In Breyer’s words, “the Steel Seizure case, even if read narrowly, represents a major change in the Court’s approach to the President’s emergency powers. Occasionally a prior case … had pointed to court-enforced limits. But in the Steel Seizure case, the Court both held that limits existed and analyzed the matter in detail. Its conclusion: better the indeterminacy of Pharaoh’s dreams than a judicial ratification of presidential emergency power without limits.” Breyer, The Court and The World, 63.

[21]Ibid., 61.

[22] Ibid., 61.

[23] 542 U.S. 466 (2004).

[24] 542 U.S. 507 (2004).

[25] 548 U.S. 557 (2006).

[26] 553 U.S. 723 (2008).

[27] Breyer, The Court and The World, 80.

[28] Ibid., 81.

[29] Ibid., 80.

[30] Ibid., 13.

[31] Breyer concludes Part I by stating: “Interdependence means that, when facing subsequent cases like those discussed so far, the Court will increasingly have to consider activities, both nonjudicial and judicial, that take place abroad. As to the former, the Court will have to understand in some detail foreign circumstances—that is, the evolving nature of threats to our nation’s security, and how the United States and its partners are confronting them—in order to make careful distinctions and draw difficult lines. This need for expanded awareness will require the Court to engage with new sources of information about foreign circumstances, in greater depth than in the past. Indeed, by agreeing to decide, rather than avoiding or rubber-stamping, cases involving national security, the Court has implicitly acknowledged a willingness to engage with the hard facts about our national security risks.” Ibid., 81.

[32] Ibid., 81.

[33] Ibid., 82.

[34] Ibid., 91-92, 96-97.

[35] Ibid., 132.

[36] Ibid., 92.

[37] Ibid., 91.

[38] Ibid., 96-97.

[39] Ibid., 168.

[40] Ibid.

[41] Ibid.

[42] Ibid., 169.

[43] That Breyer devotes considerable space to his concerns about treaty powers in relation to other constitutional provisions, such as the Supremacy Clause, shows he is alive to this distinction; his concerns also suggest that, under the Constitution, with regard to treaties, there remain open questions among reasonable thinkers about the limits and proper application of the separation-of-powers doctrine. See generally Ibid., 228-235. See also Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín v. Texas, 552 U.S. 491 (2008); Bond v. United States, 572 U.S. ___ (2014).

[44] See Breyer, The Court and the World, 237-39.

[45] Ibid., 170. See, e.g., Abbott v. Abbott, 130 S. Ct. 1983, 560 U.S. 1 (2010); Lozano v. Alvarez, 133 S. Ct. 2851 (2013).

[46] Breyer, The Court and the World, 195-97.

[47] Ibid., 180-81.

[48] See BG Group PLC v. Republic of Argentina, 572 U.S. ___, 134 S. Ct. 1198 (2014) (discussed in Breyer, The Court in the World, 185, 187-92, 195).

[49] Breyer, The Court and the World, 195.

[50] Ibid., 81.

[51] In his responsibly mixed review of The Court and the World, Akhil Reed Amar states, “Left largely unstated is Breyer’s apparent premise that as American judges become more familiar with non-American legal sources …, these very same American jurists will just naturally begin to think globally and to ponder foreign legal materials even in plain-vanilla cases of American constitutional law that do not directly involve foreign events or foreign persons.” Akhil Reed Amar, “Law and Diplomacy,” Los Angeles Review of Books (November 24, 2015) [available online at https://lareviewofbooks.org/review/law-and-diplomacy%5D (last accessed January 3, 2016).

[52] Breyer, The Court and the World, 81.

[53] Jürgen Habermas, The Lure of Technocracy, trans. Ciaran Cronin (Cambridge, United Kindgom: Polity Press, 2010), 3-28.

[54]Death Penalty,” Amnesty International Website, “What We Do” (last accessed January 3, 2016).

[55]Countries,” Amnesty International Website, “A-Z Countries and Regions” (last accessed January 3, 2016).

[56] Breyer submits the following: “When judges from different countries discuss different substantive approaches to legal problems, compare procedures, and evaluate the efficacy of judicial practices, they are not only exchanging ideas about specific tools of the trade. There is more. The underlying, but often unspoken, theme of any such meeting is the sustained struggle against arbitrariness. If the objective is ambitious, it has been so since the time of Hammurabi. The enterprise is not without setbacks. Often, like Penelope’s weaving, what we create during the day is undone at night. But the effort is worthwhile. Civilization has always depended upon it. It still does. And now, to an ever greater extent, jurists from many different countries engage in that effort together.” Breyer, The Court and the World, 280.

[57] Ibid., 7.

[58] Ibid., 5.

The Moral Case for Property Rights

In Arts & Letters, Books, Conservatism, Economics, Ethics, History, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Philosophy, Property, Scholarship, Western Civilization, Western Philosophy on March 9, 2016 at 8:45 am

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This review originally appeared here at the Library of Law and Liberty.

The James Madison Program in American Ideals and Institutions at Princeton University has become a hub of conservative constitutionalism and natural law theory, a forum where mostly likeminded scholars and public intellectuals can come together for constructive dialogue and critique. Directed by Robert P. George, the McCormick Professor of Jurisprudence at Princeton, the program has hosted established and emerging scholars alike. Adam MacLeod is one of the latter—a figure to watch, a fresh and tempered voice in the increasingly ideological field of jurisprudence and legal theory. During his James Madison fellowship, with the support and advice of his colleagues, MacLeod wrote Property and Practical Reason, his first book.

MacLeod frames his normative claims and pleas within the common law context. And he gives us his thesis in his crisp opening sentence: “This book makes a moral case for private property.” He adds that “institutions of private ownership are justified.”

That institutions of private ownership are now jeopardized is upsetting. Before the 18th century, it was simply taken for granted in most Western societies that private property rights incentivized both work and custodianship and served moral ends. Leaders of advanced nations understood that the opportunity to own land or goods motivated people to work; that work, in turn, contributed to the aggregate health of the community; and that once ownership was attained, owners preserved the fruits of their labor and likewise respected the fruits of others’ labor as having been dutifully earned. There were, of course, violations of these principles in Western societies, which is why the law protected and promoted private ownership.

Even absolute monarchs across Europe centuries ago understood the instinctual drive for personal ownership and, consequently, allowed their subjects to obtain at least qualified possession of land and real property. During the Enlightenment, however, philosophers such as John Locke awakened the Western intellect to the stark reality that private property rights were routinely violated or compromised by monarchs and sovereigns at the expense of morality and at odds with the natural law. Because humans own their bodies, Locke maintained, any object or land they removed or procured from nature, which God had provided humanity in common, was joined to those people, who, so long as no one else had a legitimate claim to such object or land, could freely enjoy a right of possession exclusive of the common rights of others.

It’s surprising that Locke isn’t mentioned in MacLeod’s defense of reason and private property, since Locke more than any other figure in the Western tradition—let alone the British tradition in which the common law emerged—made the reason-based case for the morality of private property ownership. “God,” Locke said, “who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience.” On this score MacLeod echoes Locke without giving him attention.

MacLeod advocates the type of mediated dominion of private ownership that, he says, existed at common law. Under the common law, he argues, dominion was mediated because it was restrained by the normative guides of “practical reasonableness.” He does not fully delineate what unmediated dominion looks like. But presumably it has something to do with “many contemporary accounts” that, he claims, “view property as an individual right” and facilitate an “atomization of private property” that’s “unnecessary and unhelpful.” An example might have polished off this point, since in the opening chapters it’s not always obvious to which property arrangement mediated dominion is allegedly superior.

He does, however, supply helpful examples of mediating private institutions under the common law: families and family businesses, religious associations such as churches or synagogues, civic associations, and other such cooperative forms that exercise modest control or otherwise influence a person’s claim to outright ownership. For instance, one’s community may reasonably insist that my absolute ownership of a weapon does not permit one’s use of that weapon to threaten or injure another except in self-defense. It may likewise restrict the profligate use of scarce resources, or the reckless use of intrinsically dangerous resources to the manifest detriment of one’s immediate neighbors.

The author submits that, under the common law, which illustrates constructive administration of property rights, private ownership is never total or unqualified but always subject to reasonable restraint as prescribed by custom and community. He intimates that one thing that makes private ownership reasonable is its promotion of reasonable behavior; the very reasonableness of private property is self-perpetuating. The owner of property who’s confident his ownership is legally honored and enforced will pursue future gain; as the number of such owners multiplies, the corporate prosperity of society increases.

MacLeod rejects consequentialist arguments for private property and seeks to justify private ownership on the basis of morality. He shows that private ownership is not just optimal by utilitarian standards but is practically reasonable and morally good.

In so arguing, he navigates around two anticipated criticisms: first that his defense of private property and promotion of common law standards and conditions are remedies in search of an illness, and second that beneath his proposed remedy is the sickness he wants to cure.

By discussing the work of Pierre-Joseph Proudhon, Jeremy Waldron, J. E. Penner, and Larissa Katz, among others, MacLeod proves he’s not remonstrating against straw men but engaging actual thinkers with real influence on our working perceptions of property rights. The problems he confronts are palpable: regulatory takings, trespass, taxation, riparian-right disputes, adverse possession, and waste, among others.

In depicting mediated dominion as a form of voluntary “plural ownership” that excludes state coercion, moreover, he reassures readers that a common law property regime does not contravene private ordering, despite the fact that the common law dates back to periods when English monarchs retained total and ultimate control of the land within their jurisdiction under the Doctrine of the Crown; forced owners to hold property rights in socage; confiscated property from rivals and dissidents; redistributed property in exchange for loyalty and political favors; and permitted and at times approved of slavery and villainy.

These unreasonable elements of the common law tradition do not square with the case that MacLeod makes for practical reasonableness; yet the common law tradition he invokes is sufficiently flexible and adaptive to modify or eradicate rules that perpetuate unreasonable practices and behaviors. He reminds us, too, that “slavery was for a long time unknown at common law, and its rise in positive law derogated common law rights and duties.” In other words, the rise of the English slave trade “is a story of lawmakers first departing from, then returning to, common law norms.”

Following if not synthesizing John Finnis and Joseph Raz, MacLeod recommends in the property-law context something akin to perfectionist liberalism and value pluralism. The pluralism championed by MacLeod involves multiplying the options for deliberating agents: the more room there is for rational choice, the more diverse and numerous are the opportunities to exercise human reason. These opportunities may be circumscribed by the morality of the community that is inherent in the rules that reflect basic values. The law is by nature coercive, but it is good to the extent it enables practical reason and restricts bad behavior, as determined by the net, collaborative efforts of non-state actors. MacLeod calls these combined actors members of “intermediary communities.”

The trope of individualism and community is for MacLeod a framing device for advocating mediated dominion as an incentivizing force for moral action. He skillfully and meticulously affirms that private ownership, which is conditional on the reasonable limitations established by collective norms, is reasonable not only for instrumental purposes (because it works well and facilitates constructive social relations) but also because it is good in itself. Summoning the commentary of Thomas Aquinas, William Blackstone, James Madison, Alexis de Tocqueville, Joseph Story, Georg Friedrich Hegel, F.A. Hayek, Neil MacCormick, Ronald Dworkin, Richard Epstein, and Robert P. George, MacLeod also manages to work in unexpected references to writers who do not immediately spring to mind as jurisprudents: Richard Weaver, Wendell Berry, Charles Murray, John Tomasi, and Milton Friedman. This range demonstrates the importance of property law across disciplines and in broad contexts.

To profit from this book you must, I think, hold in abeyance any assumptions or readymade generalizations you have about the nature and function of private property. You’d benefit as well from a prior familiarity with the field and discourse of property jurisprudence, not to mention the new natural law theories. I make this observation as an outsider myself. If you can’t immediately define terms like “usufruct,” either because you’ve never heard of them or because it’s been too long since you studied for a bar examination, you’ll likely need Black’s Law Dictionary and other resources close at hand as you piece through MacLeod’s rationale. Readers in other disciplines might find that the chapters presuppose an awareness of, say, the essentialist debate over whether exclusion or use defines property norms, or might question the meaning and import of “personalist” approaches to private property that emphasize the doctrines of positive liberty and personal autonomy.

Such disciplinary specificity isn’t a bad thing. One hopes, in fact, that it would motivate curious readers to undertake further study and inquiry. Yet specialization limits what a book can accomplish.

MacLeod exhibits a disposition to be philosophical rather than sociological, adopting as he does a neutral, academic tone free of animus and personal pique, arguing from logical deduction rather than concrete data or statistics. Whether this approach redounds to his advantage depends on what he wants to achieve. If he’s writing only for an academic audience of philosophers and political theorists, he’s succeeded admirably, but if his goal is to reach beyond the narrow confines of the academy, spreading his influence as widely as possible, he has fallen short. The prose is accessible to scholars and advanced graduate students, but the average lawyer will find no practical instruction in the book and might even question the at times challenging syntax and vocabulary that can obscure basic points. If economists ignore the book for its rejection of consequentialist arguments, however, it’s to their disadvantage.

No common reader, I’m afraid, will read this book from cover to cover, and that’s a pity because the subject is important, especially given the spread of eminent-domain abuse and the general embrace of egalitarianism, redistributivism, and Rawlsian notions of social justice by Americans today. The desire for private ownership is a primordial fact. We need more books and treatises that examine at a fundamental level how and why we alienate, possess, and exchange property. At around $100, Property and Practical Reason is prohibitively expensive for curious undergraduates, and also for courses in graduate studies. Moreover, the law schools may well ignore it due to its focus on abstract jurisprudence.

All that said, this book should be read—and will be, by the people who know about and are sympathetic to the work of the James Madison Program. Unfortunately, that’s not many people. Not enough, anyway. There’s no cottage industry for the philosophy of practical reasonableness. Yet there ought to be, and the reception of MacLeod’s work might tell us whether there can be. Those of a philosophical bent will delight not just in the conclusions MacLeod reaches, but in the way he reaches them: framing and reframing his sinuous arguments until his central theses become refrains. This reviewer found it a delightfully industrious, hard-won defense of private property, and well worth the high sticker price.

Balance and Imbalance in E.M. Forster’s A Passage to India

In Arts & Letters, Books, Britain, British Literature, E.M. Forster, Eastern Civilizaton, Fiction, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Modernism, Western Civilization on November 11, 2015 at 8:45 am

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E.M. Forster’s A Passage to India is in many ways about losing balance. Characters like Turton, Fielding, and Mrs. Moore represent centers of gravity, fixed between competing tensions and antagonistic binaries: reason and emotion, Indian and British, human and animal.

Situated between the nested oppositions, Turton, Fielding and Mrs. Moore denote compromised identity, the reconcilability of two cultures; as middle-markers they refuse rigid categorization and maintain symmetry in power relations. Instead of opening channels of communication and understanding, however, their mediating presence has tragic results: Turton goes crazy, Fielding loses hope and Mrs. Moore dies. These characters are necessary as fulcra; but when they align themselves with one binary or leave India altogether, they trouble the balance and stability of society writ large.

In a strictly separatist microcosm, they occupy the geometric center. When their positions shift, equilibrium breaks down: society becomes a mass of madness. The only go-between characters in the novel are English, suggesting that the story is a mirror held up to placate white guilt.

The demise of these characters in particular, and of Anglo-Indian relations generally, turns on the overarching, structural antinomy between reason and emotion that comes to a head during the abortive kangaroo trial. An interrogation of this antinomy and its collapse into muddledom reveals how law and justice in Chandrapore bear a systematic and determinative relation to race and gender.

The above text is adapted from an excerpt of my essay “‘Mass of Madness’: Jurisprudence in E.M. Forster’s A Passage to India,” published in Modernist Cultures, Vol. 6, No. 2 (2011). To view the full essay, you may download it here at SSRN or visit the website of Modernist Cultures.

Was Oliver Wendell Holmes Jr. a Conservative?

In American History, Arts & Letters, Conservatism, History, Humanities, Judicial Restraint, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Politics, Pragmatism on November 4, 2015 at 8:45 am

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Oliver Wendell Holmes Jr. can seem politically enigmatic in part because he was a jurist, not a legislator. He was no conservative, but he was no progressive, either. Misconstruing and mislabeling him only leads to the confusion and discrediting of certain views that conservatives and libertarians alike seriously ought to consider. One must not mistakenly assume that because Lochner-era Fourteenth Amendment due process jurisprudence favored business interests, Holmes stood against business interests when he rejected New York’s Fourteenth Amendment due process defense. (I have avoided the anachronistic term “substantive due process,” which gained currency decades after Lochner.)

Holmes resisted sprawling interpretations of words and principles—even if his hermeneutics brought about consequences he did not like—and he was open about his willingness to decide cases against his own interests. As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”

All labels for Holmes miss the mark. Holmes defies categorization, which can be a lazy way of affixing a name to something in order to avoid considering the complexity and nuances, and even contradictions, inherent in that something. “Only the shallow,” said Justice Felix Frankfurter, “would attempt to put Mr. Justice Holmes in the shallow pigeonholes of classification.”

Holmes was not conservative but more like a pragmatist in the judicial sense. His position on judging is analogous to William James’s suggestion that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices. James exposited the idea of a “pluralistic world,” which he envisioned to be, in his words, “more like a federal republic than like an empire or a kingdom.” Holmes likewise contemplated the notion of a federal republic in his majority opinions and dissents.

The above text is adapted from an excerpt of my essay “Justice Holmes and Conservatism,” published in The Texas Review of Law & Politics, Vol. 17 (2013). To view the full essay, you may download it here at SSRN or visit the website of The Texas Review of Law & Politics.

1881: The Year Oliver Wendell Holmes Jr. Adapted Emerson to the Post-War Intellectual Climate

In American History, American Literature, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Literature, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Western Philosophy on October 14, 2015 at 8:45 am

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Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year gave him a chance to express his jurisprudence to a wide audience. This marked a turning point in his career. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court.

The trauma of the Civil War affected his thinking and would eventually impact his jurisprudence. Leading up to the War, he had been an Emersonian idealist who associated with such abolitionists as Wendell Phillips. As a student at Harvard, he had served as Phillips’s bodyguard. He later enlisted in the infantry before joining the Twentieth Massachusetts, a regiment that lost five eighths of its men. He was wounded at the Battle of Ball’s Bluff in October of 1861, when he took a bullet to his chest; the bullet passed through his body without touching his heart or lungs. In September of 1862, he was wounded at the Battle of Antietam, a bullet having passed through his neck. In May of 1863, at Marye’s Hill, close to where the battle of Fredericksburg had taken place six months earlier, Holmes was shot and wounded a third time. This time the bullet struck him in the heel, splintered his bone, and tore his ligaments; his doctors were convinced that he would lose his leg. He did not, but he limped for the rest of his life.

He emerged from the War a different man. He was colder now, and more soberminded. “Holmes believed,” Louis Menand says, “that it was no longer possible to think the way he had as a young man before the war, that the world was more resistant than he had imagined. But he did not forget what it felt like to be a young man before the war.” And he learned that forms of resistance were necessary and natural in the constant struggle of humans to organize their societies and to discover what practices and activities ought to govern their conduct. The War, accordingly, made him both wiser and more disillusioned. In light of his disillusionment, he reflected the general attitudes of many men his age.

But not all men his age shared his penetrating intellect or his exhilarating facility with words; nor did they have his wartime experience, for most men who experienced what he had during the war did not live to tell about it. Certainly no one besides Holmes could claim to have enjoyed such intimate and privileged access to the Brahmin, Emersonian culture of New England before the War, and he more than anyone was equipped to see the continued relevance of that culture to the present. He knew there were things the War could not destroy and varieties of thought that could endure.

The above text is an excerpt from my essay “Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.’s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey,” published in The South Carolina Review, Vol. 48, No. 1 (2015). To view the full essay, you may download it here at SSRN or visit the website of The South Carolina Review.

 

“A Selected Bibliography on the Political and Legal Thought of Oliver Wendell Holmes, Jr.,” by Seth Vannatta

In Academia, American History, Arts & Letters, Books, Conservatism, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Politics, Pragmatism, Scholarship on October 7, 2015 at 8:45 am

Seth Vannatta

Seth Vannatta is an Associate Professor and Interim Department Head in the Department of Philosophy and Religious Studies at Morgan State University. He earned a PhD in Philosophy at Southern Illinois University Carbondale (2010), where he lived from 2006-2010. Before attending SIUC, Seth taught grades 5 through 12 in the History, English, and Religion Departments at Casady School. He served as head varsity volleyball coach for ten years and head varsity soccer coach for three years. He also served as chair of the history department for two years. He has a BA from Colorado College in History (1995) and a Master’s in Liberal Arts from Oklahoma City University (2002). His wife, Rachel, has a BA from Northwestern University (2006), an Master’s in Counselor Education from Southern Illinois University (2010) and is a doctoral candidate in Counselor Education at George Washington University.

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Luban, David. “The Posner Variations (Twenty-Seven Variations on a Theme by Holmes).” Stanford Law Review. Vol. 48. No. 4 (Apr. 1996), 1001-1036.

___________. “Justice Holmes and the Metaphysics of Judicial Restraint. Duke Law Journal. Vol. 44. No. 3. (December, 1994), 449-523.

___________. Legal Modernism. Ann Arbor: University of Michigan Press, 1997.

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The Collected Works of Justice Holmes, Vol. 3, ed. Sheldon M. Novick. Chicago: University of  Chicago Press, 1995.

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­­­­­­­­­­­­­­­______________. “Questions Concerning Certain Capacities Claimed for Man.” in The Essential  Peirce. Edited by Edward C. Moore. Amherst: Prometheus Books, 1998.

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Part II

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Rousseau, Jean-Jacques. The Social Contract. New York: Penguin Books, 2006.

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An Issue of Supreme Importance for 2016

In America, Conservatism, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, News and Current Events, Politics, The Supreme Court on April 22, 2015 at 8:45 am

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This piece originally appeared here in The American Spectator.

The time has come for politicians to announce their candidacy for president. In the following weeks we can expect more names to be tossed into the hat of presidential hopefuls. Already Senator Ted Cruz and Senator Rand Paul have proclaimed their desire to lead our country. Hillary Clinton made her candidacy official Sunday, and Senator Marco Rubio announced on Monday night.

The 2016 election is shaping up to be the most pivotal in decades, including for reasons not everyone is talking about.

It’s true that Republicans will challenge Obama’s legacy and that everything from Obamacare to payday loans will receive renewed and energetic scrutiny on the campaign trail.

Yet these won’t be the most pressing domestic issues facing the next president. Even more important will be the president’s judicial philosophy. That’s because the probability is high that the nation’s next chief executive administration will nominate at least three candidates to the U.S. Supreme Court.

Although confidence in the Court is at an all-time low, voters do not seem particularly concerned about the Court’s future composition. Perhaps the typical voter does not understand the role the president plays in nominating justices. Perhaps the goings-on of the judicial branch seem distant and aloof and out of the purview of our everyday worries. Perhaps most people are too short-sighted to consider the long-term and far-reaching effects that a president can have on the legal system. Whatever the reason, voters should re-prioritize. Conservatives should move this issue to the forefront of the debates.

When the president is inaugurated in January 2017, Justice Ruth Bader Ginsburg, widely thought to be in poor health, will be two months shy of her 84th birthday; Justice Antonin Scalia and Justice Anthony Kennedy will be 80; and Justice Stephen Breyer will be 78. Is it reasonable to expect these justices to serve out four more years under another administration?

Justice Ginsburg and Justice Breyer are considered members of the left wing of the Court whereas Justice Scalia is considered to be on the right. Justice Kennedy is famously known as the Court’s “swing vote.”

If a Republican wins in 2016 election, he could replace two liberal members of the Court, leaving just two other remaining: Justice Sonia Sotomayor and Justice Elena Kagan. If Justice Kennedy were also to step down during the next administration, a Republican president could further expand the conservative wing of the Court to seven, making room for a vast majority in contentious cases. If the right wing of the Court enjoyed a 7-2 majority today, for instance, there would be less media speculation about how the Court would decide cases on same-sex marriage, religious freedom, immigration, or campaign finance.

The Senate Judiciary Committee, which conducts hearings on presidential nominees to the High Court, currently consists of 11 Republicans and 9 Democrats. Republicans hold a 54-member majority in the Senate, the governing body that confirms presidential nominees to the Court. If these numbers remain unchanged or only slightly changed under a Republican president, that president would have wide latitude to nominate candidates who have tested and principled commitments to conservatism.

Let’s say the presidential election favored a Democrat. A Democratic president could simply replace the departing Justice Ginsburg or Justice Breyer with a jurist in their mold, in effect filling a liberal seat with another liberal. If a Democratic president were up against a Republican Senate, however, his or her nominees would have to appear less liberal than Justice Ginsburg to ensure their confirmation.

Replacing Justice Scalia, arguably the most conservative justice on the Court, with a liberal would be transformative. Although depicted as an unpredictable moderate, Justice Kennedy was nominated by a Republican and more often than not votes with the right wing of the Court. Replacing him with a liberal justice would be a victory for the left. It is possible for the left wing of the Court to gain a 6-3 majority if a Democrat succeeds President Obama.

It’s not inconceivable that in the time he last left, President Obama could name at least one successor to the Court. Barring some unforeseen illness or act of God, however, that is unlikely to happen this late in his presidency. Justice Ginsburg insists on remaining on the Court, and Justice Breyer still has some healthy, productive years ahead of him.

Judges’ and justices’ judicial philosophies are not easily pressed into two sides—conservative or liberal, Republican or Democrat—because law itself usually is not reducible to raw politics or naked partisanship, and a judge’s job entails more than interpreting the language of legislative enactments. Law deals with the complex interactions of people and institutions under disputed circumstances that are portrayed and recounted from different perspectives; therefore, law rarely fits cleanly within simplistic political frameworks.

For this reason, among others, it can be difficult to predict how potential justices will rule from the bench if they are installed on the Court. Chief Justice Earl Warren ushered in the progressive “Warren Court Era” even though he had served as the Republican Governor of California and, in 1948, as the vice-presidential running mate of presidential candidate Thomas E. Dewey. More recently President George H.W. Bush nominated Justice David Souter to the Court. Justice Souter tended to vote consistently with the liberal members of the Court.

The Senate confirmation process has grown more contentious in recent years, and that has made it more difficult for another Souter to slip by the president. But it has also watered down our nominees, whose lack of a paper trail is considered a benefit rather than evidence of a lack of conviction or philosophical knowledge (lawyers are trained, not educated). It has come to a point where if you’re confirmable, you’re not reliable, and if you’re reliable, you’re not confirmable. Chief Justice John Roberts’ acrobatic attempt to uphold the individual mandate in Obamacare on the ground that it was a “tax” reveals just how squishy and unpredictable our justices have become.

There is, of course, the trouble with categorizing: What does it mean to be a “conservative” or a “liberal” judge or justice? Our presidential candidates may have different answers. In January Senator Paul declared himself a “judicial activist,” a label that is gaining favor among libertarians. He appears to have backed away from that position, recently bemoaning “out-of-control, unelected federal judges.” Activist judges, at any rate, can be on the right or the left.

Ted Cruz has not advertised his judicial philosophy yet, but by doing so he could set himself apart because of his vast legal experience, including his service as the Solicitor General of Texas. Two potential presidential nominees, Marco Rubio and Lindsey Graham, are also attorneys, but Rubio’s legal experience, or non-experience, is subject to question, and Graham has been out of the legal field for some time—although he serves on the Senate Judiciary Committee and has intimate knowledge of the Senate confirmation prospects for potential nominees.

It matters a great deal what our presidential candidates believe about the hermeneutics and jurisprudence embraced by potential Supreme Court justices. In the coming months voters will have the power to force candidates to address their judicial philosophy. The candidates must articulate clearly, thoroughly, and honestly what qualities they admire in judges because those qualities might just shape the nation’s political landscape for decades to come.

Conservatives have much to lose or gain this election in terms of the judiciary. Supreme Court nominations should be a top priority for Republicans when debate season arrives.
Read more at http://spectator.org/articles/62383/issue-supreme-importance-2016

Es buena la Decimocuarta Enmienda?

In America, American History, Arts & Letters, Austrian Economics, Historicism, History, Humanities, Jurisprudence, Law, Liberalism, Libertarianism, Nineteenth-Century America, Philosophy, The Supreme Court on February 18, 2015 at 8:45 am

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El artículo original se encuentra aquí. Traducido del inglés por Mariano Bas Uribe.

Pocas cosas dividen a los libertarios como la Decimocuarta Enmienda de la Constitución de Estados Unidos. Gene Healy ha observado que “Liberales clásicos de buena fe se han encontrado en ambos lados de la discusión”.

Por un lado están los que alaban la enmienda por evitar el poder de los estados para prejuzgar, dirigir, regular o usar fuerza de cualquier tipo para imponer leyes discriminatorias sobre sus ciudadanos. Por el otro están los que, aunque reconozcan la naturaleza problemática de las malas conductas y los actos inmorales del estado, no están dispuestos a consentir la transferencia de poder de los estados al gobierno federal, y en particular al poder judicial federal.

La división se reduce a las visiones del federalismo, es decir, al equilibrio o separación de los gobiernos estatales y nacional.

Las secciones primera y quinta de la Decimocuarta Enmienda son las más polémicas. La Sección Uno incluya la Cláusula de Ciudadanía, la Cláusula de Privilegios o Inmunidades, la Cláusula de Proceso Debido y la Cláusula de Igual Protección y la Sección Cinco otorga al Congreso la autoridad para aplicar legislativamente la enmienda. Estas disposiciones han dado mayores poderes al gobierno nacional, permitiendo a los tribunales federales a hacer que los estados cumplan las leyes federales con respecto a ciertos derechos (o supuestos derechos) individuales.

El Tribunal Supremo de Estados Unidos, en Barron v. Baltimore (1833), sostuvo que la Declaración de Derechos (las primeras diez enmiendas a la Constitución de EEUU) obligaban solo al gobierno federal y no a los gobiernos estatales. Mediante la Decimocuarta Enmienda, que fue ratificada oficialmente en 1868, el Tribunal Supremo de Estados Unidos y los tribunales federales inferiores han “incorporado” gradualmente la mayoría de las disposiciones de la Declaración de Derechos para aplicarlas contra los estados. Así que el gobierno federal se ha empoderado para hacer que los gobiernos estatales cumplan disposiciones que originalmente solo pretendían restringir los abusos federales.

Si el gobierno federal fuera el único o el mejor mecanismo para reducir el tipo de discriminación y violaciones de derechos prohibidos por la Decimocuarta Enmienda, esta sería bienvenida y aceptada. Pero no es el único correctivo concebible y, aparte, ¿no es contraintuitivo para los libertarios aplaudir y defender un aumento tanto en el ámbito como en el grado del poder federal, incluso si ese poder, en algunas ocasiones, haya producidos resultados admirables?

En contextos no relacionados con la Decimocuarta Enmienda, casi nunca resulta polémico para los libertarios promover remedios no gubernamentales, locales o descentralizados, para leyes y prácticas injustas y discriminatorias. A menudo se alega que la industria y el comercio y la simple economía son mejores mecanismos para reducir el comportamiento discriminatorio, ya se base en raza, clase, sexo, género o lo que sea, que la fuerza del gobierno. Aun así, frecuentemente esos libertarios que hacen sonar las alarmas acerca de las aproximaciones gubernamental, federal y centralizada de la Decimocuarta Enmienda a las leyes y prácticas discriminatorias son tratados de forma poco sincera, en lugar de con argumentos, como defensores de aquellas leyes y prácticas, en lugar de como oponentes por principio de las reparaciones federales centralizadas para daños sociales.

Cualquier debate sobre la Decimocuarta Enmienda debe ocuparse de la validez de esta aprobación. Durante la Reconstrucción, la ratificación de la Decimocuarta Enmienda se convirtió en una condición previa para la readmisión en la Unión de los antiguos estados confederados. Healy ha llamado a esto “ratificación a punta de bayoneta”, porque, dice, “para acabar con el gobierno militar, se obligó a los estados sureños a ratificar la Decimocuarta Enmienda”. La condición natural de esta reunificación contradice la afirmación de que la Decimocuarta Enmienda fue ratificada por un pacto mutuo entre los estados.

Los jueces federales consideran irrelevante el propósito de la enmienda

En 1873, el juez Samuel F. Miller, junto con otros cuatro jueces, sostuvo que la Decimocuarta Enmienda protegía los privilegios e inmunidades de la ciudadanía nacional, no la estatal. El caso afectaba a regulaciones estatales de mataderos para ocuparse de las emergencias sanitarias que derivaban de sangre animal que se filtraba en el suministro de agua. El juez Miller opinaba que la Decimocuarta Enmienda estaba pensada para ocuparse de la discriminación racial contra los antiguos esclavos en lugar de para la regulación de los carniceros:

Al acabar la guerra [de Secesión], los que habían conseguido restablecer la autoridad del gobierno federal no se contentaron con permitir que esta gran ley de emancipación se basara en los resultados reales de la contienda o la proclamación del ejecutivo [la Declaración de Emancipación], ya que ambos podían ser cuestionados en tiempos posteriores, y determinaron poner estos resultado principal y más valioso en la Constitución de la unión restaurada como uno de sus artículos fundamentales.

Lo que dice el juez Miller es que el significado y propósito de la Decimocuarta Enmienda (proteger y preservar los derechos de los esclavos liberados) se desacredita cuando se usa para justificar la intervención federal en los asuntos económicos cotidianos de un sector estatal concreto. La regulación estatal de los mataderos de animales no es una opresión del mismo tipo o grado que la esclavitud de gente basada en su raza. Argumentar otra cosa es minimizar la gravedad de la ideología racista.

El juez Miller reconocía que la regulación estatal en cuestión era “denunciada no solo por crear un monopolio y conferir privilegios odiosos y exclusivos a un pequeño número de personas a costa de una buena parte de la comunidad de Nueva Orleáns”, la ciudad afectada por los mataderos en cuestión, sino asimismo como una privación del derechos de los carniceros a ejercitar su profesión. Sin embargo, el juez Miller no creía que el gobierno federal tuviera derecho bajo la Constitución a interferir con una autoridad que siempre se había concedido a gobiernos estatales y locales.

Habiendo establecido al alcance limitado de la cláusula de privilegios o inmunidades en los Casos de los mataderos, el Tribunal Supremo acudió posteriormente a la Cláusula de Igual Protección y la Cláusula del Proceso Debido para echar abajo leyes bajo la Decimocuarta Enmienda. Pero el Tribunal Supremo no se ha detenido ante las leyes estatales: ha usado la Cláusula de Igual Protección y la Cláusula del Proceso Debido como pretexto para regular a ciudadanos y empresas privadas. La Decimocuarta Enmienda, que pretendía reducir la discriminación, se ha usado, paradójicamente, para defender programas de acción afirmativa que discriminan a ciertas clases de personas.

Ceder el poder a los jueces federales no les predispone a la libertad. Como la Sección Cinco de la Decimocuarta Enmienda permite al Congreso aprobar enmiendas o leyes que traten de infracciones estatales a la libertad individual, no es necesario ni constitucionalmente sensato que el poder judicial federal asuma ese papel. Los miembros del Congreso, al contrario que los jueces federales que disfrutan del cargo vitaliciamente, son responsables ante los votantes en sus estados y por tanto es más probable que sufran por su infidelidad a la Constitución.

A nivel conceptual, además, parece extraño que los libertarios defiendan internamente lo que condenan en relaciones exteriores, a saber, la doctrina paternalista de que un gobierno central más poderoso tendría que usar su músculo para obligar a cumplir a unidades políticas más pequeñas.

El legado de la enmienda

¿Ha generado resultados constructivos la Decimocuarta Enmienda? En muchas áreas, sí. ¿Son deplorables algunas de las ideologías contra las que se ha dirigido? En muchos casos, sí. ¿Eran malas las normas contra el mestizaje, las normas de segregación escolar y las normas prohibiendo a los afro-americanos actuar como jurados? Sí, por supuesto. Sin embargo no se deduce que solo porque algunos casos bajo la Decimocuarta Enmienda hayan invalidado estas malas leyes, esta sea necesaria o incondicionalmente buena, especialmente a la vista de la pendiente resbaladiza de precedentes que con el tiempo distancian a las normas de su aplicación pretendida. “Si los tribunales empiezan a usar la Decimocuarta Enmienda para aplicar derechos naturales libertarios”, advierte Jacob Huebert en Libertarianism Today, “no sería más que un pequeño paso para que empezaran a usarla para aplicar derechos positivos no libertarios”.

Intelectuales de la izquierda como Erwin Chemerinsky, Charles Black, Peter Edelman y Frank Michelman han defendido la protección y aplicación de “derechos de subsistencia” bajo la Decimocuarta Enmienda. Estos incluirían los derechos a comida, atención sanitaria y salario mínimo proporcionados por el gobierno. Las leyes estatales que evitaran estos derechos (que no proporcionaran estas prestaciones sociales) se considerarían inconstitucionales; el ejecutivo federal aseguraría así que todo ciudadano de los estados transgresores reciba atención sanitaria, alimentos y una renta básica, todo subvencionado por los contribuyentes.

Estoy dispuesto a admitir no solo que en la práctica yo litigaría bajo las disposiciones de la Decimocuarta Enmienda para representar competente y éticamente a mi cliente (imaginar un sistema en el que el poder federal no esté tan atrincherado es inútil para litigantes en un sistema real en que el poder federal está profundamente arraigado), pero también que, en un mundo más ideal, podría haber otras formas menos deletéreas de luchar contra discriminación y violaciones de derechos que la Decimocuarta Enmienda. El taller de la actividad diaria no atiende abstracciones esperanzadas. No se puede deshacer un sistema de la noche a la mañana: los abogados deben actuar con las leyes que tienen disponibles y no pueden inventar otras nuevas para sus casos o agarrarse a una mera política. No si quieren tener éxito.

En ausencia de la Decimocuarta Enmienda, muchas personas y empresas con quejas válidas podrían no tener soluciones constitucionales. Sin embargo eso no significa que los términos y efectos de la Decimocuarta Enmienda sean incuestionablemente deseables o categóricamente buenos. Se pueden celebrar las victorias logradas mediante la Decimocuarta Enmienda mientras se reconoce que debe haber un modo mejor.

La Decimocuarta Enmienda no es en sí misma un bien positivo sino un animal peligroso a manejar con cuidado. Los libertarios como clase tienen una devoción manifiesta impropia a su funcionamiento. Necesitamos en su lugar un debate, abierto, honrado y colegiado acerca de los méritos y la función de esta enmienda, no sea que otras criaturas similares miren al futuro y a costa de nuestras amadas libertades.

 

Review of Damon Root’s “Overruled: The Long War for Control of the U.S. Supreme Court”

In American History, Arts & Letters, Book Reviews, Books, Judicial Activism, Judicial Restraint, Jurisprudence, Libertarianism on January 28, 2015 at 8:45 am

Allen 2

This review originally appeared here in the American Spectator.

The sounds coming from the echo chamber suggest that Damon Root’s new book Overruled: The Long War for Control of the U.S. Supreme Court has been an uncheckered success. On the book’s cover Randy Barnett declares it

a riveting account of the raging debate over the future of our Constitution between those who contend that judges must ‘defer’ to legislatures and those who view the judiciary as an equal branch of government whose mandate is to secure the rights and liberties of the people by holding government to its just powers.

Writing for the Volokh Conspiracy blog at the Washington Post, Ilya Somin praises the book as the “most thorough account of the libertarian-conservative debate over judicial review so far.”

In the Wall Street Journal Michael Greve critiques the obvious weaknesses in Root’s narrative — its oversimplification — with which, Greve says, “legal historians may quarrel.” But Greve accepts Root’s negative portrayal of Justices Oliver Wendell Holmes, Jr., Louis Brandeis, and Felix Frankfurter, notable expositors of the doctrine of judicial restraint. The trio, Greve claims, “had not the foggiest notion of the Constitution,” which they “loathed… as inimical to their vision of government by experts.”

Here’s a contrary opinion from a libertarian student of the law: Root’s book suffers from caricature. His approach pits essentialized binaries (what he calls “two competing visions”) against one another in a fight for the good that one binary allegedly represents. History is rich and complex and not simply or without consequence pressed into two-sided struggles. Root would have benefited from a more concerted effort to understand the range of perspectives and heuristics embraced by jurists across a spectrum of backgrounds and beliefs.

Root purports to tell a story “which stretches from the Civil War period to the present,” but the key players are just three people: Holmes, Robert Bork, and Justice Stephen Field. The first two represent the doctrine of judicial restraint that might send “the whole country straight to the devil”; the third man represents an “aggressive legal approach” that Root attributes to libertarianism. Root seeks to show how conservatives over the course of the twentieth century adopted a jurisprudence of restraint that was once the darling of progressives. The subtext is twofold: that today’s conservatives need to be told their legal theory derives from the left, and that current libertarian jurisprudents are part of a more dependable school of thought.

The problem is that the divide between libertarians and conservatives is not so clear in the legal context. In fact, many of both adhere to the basic tenets of originalism and textualism, although within those operative paradigms they may disagree. It’s also difficult to discern whether a judge is conservative or libertarian, since his job is to analyze constitutional provisions and statutes and prior decisions to determine what the law is, not what he wants it to be. A judge may be forced to rule against his political interests if the statutory authority is both unambiguous and constitutional; in such moments the judge has no power to overturn the will of the voters as manifest in legislation or to alter the Constitution.

The most devastating shortcoming of Overruled is its tendency to reduce complicated cases and figures to artless political categories. Root’s Holmes is a fictional type, a stock character, not the actual jurist of history. Look no further than Thomas Sowell for a libertarian — or someone often categorized as a libertarian — who champions Holmes’s jurisprudence rather than considering him an enemy. The real Holmes had much in common with F.A. Hayek, as Richard Posner has revealed in law review articles and in his book Law, Pragmatism, and Democracy.

Before Hayek, Holmes formulated his own version of “the knowledge problem,” maintaining that no one judge or group of judges should presume to understand the facts on the ground well enough to direct the goings on in local communities with disparate values and conflicting objectives. We learn the diverse preferences of citizens through the feedback mechanisms of the market and should not have them prescribed for us through the commands of judges and justices. That’s why Holmes deferred to state legislatures to, in his words, “prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states.”

Root advocates an inversion of Holmes’s jurisprudence, for something loosely akin to rule by Platonic Guardians: put wise activist philosophers on the bench, he seems to say, and they can waive their magic wands to perform libertarian miracles. With such power and leeway, couldn’t they also do the opposite? Couldn’t they impose on us a scheme of “rights” — to subsistence or a basic income — that’s antithetical to the free market? Scholars on the left such as Erwin Chemerinsky, Charles Black, Peter Edelman, and Frank Michelman champion the same expansive approach that Root celebrates. Their goal, however, is to empower the judiciary to impose a statist agenda by regulating business and eradicating economic liberties.

If Root’s claim is true that libertarian jurisprudents are “the sworn enemies” of Holmes, then why has Posner — who’s no dummy — declared Holmes to be “liberal only in the nineteenth-century libertarian sense, the sense of John Stuart Mill and, even more, because more laissez-faire, of Herbert Spencer”? Posner goes further, suggesting that Holmes “made laissez-faire his economic philosophy.”

Holmes was influenced by Spencer and versed in Mill. It isn’t accurate to assert, as Root does:

Spencer was regarded as the late nineteenth century’s leading proponent of full-throated laissez-faire. That’s why Holmes cast him as a villain in his Lochner dissent.

For starters, Holmes did not cast Spencer as a villain; he simply stated that Spencer’s views on economics were irrelevant to the Fourteenth Amendment, which secured federal citizenship for former slaves and prohibited the states from abridging the privileges or immunities of that citizenship. In reality, Holmes’s assessments of Spencer were mixed, and the justice’s letters are sprinkled with references to him. He cited Spencer while developing a theory of torts. He read Spencer’s autobiography. He criticized Spencer less for his philosophy than for his style and idealism, saying, for instance, “He is dull. He writes an ugly uncharming style, his ideals are those of a lower middle class British Philistine.”

Louis Menand has written that Holmes’s “personal sympathies were entirely with the capitalists.” That seems right: he once jested that “if they could make a case for putting Rockefeller in prison I should do my part; but if they left it to me I should put up a bronze statue of him.” Nevertheless, Holmes was no libertarian. What libertarian would proclaim, “Taxes are what we pay for civilized society”? Just because he wasn’t a libertarian, however, doesn’t mean he offered no good insights.

Holmes read Adam Smith shortly before writing his dissent in Abrams v. U.S., in which he trumpeted that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This dissent has been dubbed “libertarian” by so many commentators that listing them all would take up the space of this entire review. Surprisingly, Root mentions Holmes’s affirmance of the conviction of Eugene Debs under the Espionage Act of 1917 but fails to address this more famous dissent, which doesn’t square with Debs’s case.

It’s possible to attack Holmes shrewdly, without raw polemics that skip over inconvenient facts. David Bernstein’s Rehabilitating Lochner does that, condemning the ideas and not the man who held them. Only the cartoonish cover of Bernstein’s book, which depicts Holmes being punched out by Justice Wheeler Peckham in a boxing ring, is unfair to Holmes.

Whether Bork can be easily lumped together with Holmes is another matter. Bork called Holmes’s dissent in Lochner “flawed,” even though he agreed with most of it. He decried Holmes’s marketplace metaphor in Abrams as “foolish and dangerous.”

Root’s book may appeal to already-within-the-pale libertarian readers but won’t interest many beyond that audience. That’s probably a good thing. The truth is that judicial restraint and judicial activism are not palpably partisan creeds that can be readily summarized or easily illustrated. Labeling them “conservative” or “libertarian” is not conclusive as to their substance. Judges with wildly divergent worldviews have pushed the limits of their authority to reach their desired result in certain cases.

In the book’s opening pages, Root asserts that Elena Kagan, who claimed in her confirmation hearings that the political branch, not the judiciary, was the proper mechanism for dispensing with bad laws, “had placed herself squarely within a long and venerable legal tradition that seeks to give the government wide control over regulatory affairs while simultaneously preventing most interference from the courts.” This is missing the point. The courts, which Root wishes to vest with wider control over regulatory affairs, are not necessarily an outside check on our problematically powerful government; they are part of our problematically powerful government.

The federal judiciary is an arm of the state, plain and simple, peopled by unelected judges and justices who aren’t accountable to the people. It’s thus strange to see Root cast the judiciary as the people’s branch. If a member of Congress isn’t representing the people’s interest, the people can, excuse me, throw the rat out. Federal judges, on the other hand, must be impeached.

Root’s recommendation for a more robust judiciary makes sense only if most judges are libertarians. Most aren’t. Therein lies the case for judicial restraint.

Remedies for Breach of Contract

In Advocacy, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, Philosophy on November 5, 2014 at 8:45 am

Allen 2

A breach of contract occasions potential damages traditionally measured in the form of three remedies: “expectation,” “restitution,” or “reliance.” The goal of the expectation remedy, which is the most common measure of damages for a breach of contract and is popularly said to confer the “benefit of the bargain,” is to put the non-breaching party in as good of a position as he or she would have been in had the breaching party performed the contract.

When a breaching party has defectively performed a contract, for instance, the non-breaching party can recover the cost of remedying the defective performance, i.e., the cost of completion. In a breach of contract lawsuit for the delivery of personal property at a fixed time and place, the proper measure of damages is the contract price subtracted by the market price at the place and time of delivery. By comparison, the proper measure of damages for the failure to complete a construction contract is the cost of completion subtracted by the amount that remains unpaid under the contract.

Restitution remedies are designed to prevent “unjust enrichment.” They represent the interest of a non-breaching party in recovering the value that was conferred upon the breaching party through the effort to perform a contract. In other words, restitution seeks to restore what was lost to the non-breaching party or to make the non-breaching party whole again.

Reliance remedies, finally, aim to put the non-breaching party in as good a position as he or she was in before the promise or agreement was made. Whereas expectation damages are “forward-looking” and consider what position the non-breaching party would have been in had the contract been performed, reliance damages are “backward-looking” and consider what position the non-breaching party would have been in had the contract never been contemplated.

These are not the only remedies available when a breach of contract occurs, but they are the most widely recognized and commonly implemented of such remedies.

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