Is the Law Dead? Is the U.S. Constitution Working? Or Has It Been Surrendered? By Matthew Andersson (posted by Mary Grabar November 5, 2021):
“He who possesses a right must, if need be, defend it, even to the utmost of his power. It is therefore in general a sign of weakness if one becomes so impartial that one is not only incapable, but will not even expose oneself to danger in defending one’s own right.” Thucydides
IN 1970, FORMER STATE DEPARTMENT OFFICIAL AND PREVIOUS DEAN OF YALE LAW, EUGENE ROSTOW, ORGANIZED A CONFERENCE FOR THE ASSOCIATION OF THE BAR OF NEW YORK CITY and the papers presented there, he edited into a book titled, “Is Law Dead?” The issues that preoccupied the conference were the Vietnam War and civil rights. The concepts of conscientious objection or civil disobedience were assumed to operate, potentially, within a still reliable, intact democratic architecture of government and law. Our social and economic waters may have been rough, but the ship of state was sturdy, upright, and ultimately reliable. If law was “dead,” then, it wasn’t due to our institutions, but to insufficient social will, or public passivity toward its own rights. Fast forward to 2021, and things are very different: our institutions themselves, such as police protection, the comprehensive rights spelled out in the Constitution, or state sovereignty itself, are under assault by a radicalized Left that is operating in our government. But more, the public is being “force-fed” with trade-offs such as mandated vaccination that purportedly presents safety, but asks us to give up constitutional rights in privacy, religious freedoms, association, education, and access to even basic public functions such as travel.
The birth of the written U.S. Constitution, “must on any neutral evaluation, count as the greatest triumph of political statecraft in the history of the world.” Indeed it is. The late Yale Law scholar, practicing lawyer and military veteran Alexander Bickel asserted that “Under our Constitution, the United States would have great difficulty turning itself into a repressive society.”
Is Bickel still right? I don’t think he is: a repressive social order—fully welcomed or passively acceptable to the majority of America’s legal community, especially its law schools—is slowly encroaching on nearly all traditional American civil liberties.
In our current political economy of 2021, the twin pillars of separation of powers, or federalism, and the political and legal concept of consent, are under attack. They are threatened in a truly existential way, through executive orders and “emergency” measures, as the core governing architecture of America. As Judge Antonin Scalia reminded us, that architecture is the basis for a robust, living, Bill of Rights: “If you had to put your finger on what has made our Constitution so enduring, I think it is the original document before the amendments were added. Because the amendments, by themselves, do not do anything. What makes it work, what assures that those words (in the Bill of Rights) are not just hollow promises, is the structure of our government.” Our current Constitution has been weakened by a series of legal exceptions. Most are claims to “extraordinary” circumstances including the 2003 Patriot Act which in many ways eviscerated the Constitution. The 2020 claim to a pandemic established a further consolidation in federal government power, especially over state voting procedures, and further uncontrolled, unaccountable government spending.
What is the cause of this sudden frontal assault on U.S. constitutionalism in First Amendment terms especially? There are many complex causes. A primary one is the way we are training our law students, who then become our lawyers, our judges, our politicians and our legislators.
At a recent social event, a number of law students told me that “Americans don’t have as many rights as they think they do, and they should be forced into accepting many mandatory demands including vaccines, and comprehensive restrictions on their personal consumption that can cause global warming.” When I pushed back that, in fact, Americans have more rights than they generally realize, I was viewed as an effective heretic. Where are young adults getting this kind of thinking from? Their professors. But law schools teach much more than what is transmitted in the classroom; like all institutes of learning, the larger culture or “shadow curriculum” that defines social assumptions and political outlook, also has profound cognitive and emotional “shaping” influences on young adults, including how they psychologically mirror their professors. This is reinforced by their subordination in the school hierarchy; by their dependence on professors for approval, and by their expectations for lifetime rewards in employment, and in social and economic status. Law schools are our new socialist training camps that undermine America’s classical liberal Constitution.
The law school itself has become a massive edifice that is so complex, and so far removed from normal, day-to-day society, that it exists almost as a separate legal institution, and one that creates endless, complex interpretations and theories (like the “Pigouvian Constitution” or “Personalized Law”). This formalism, and legalism, is attractive to the political class of course, and creates the basis for political ‘lawfare” (or deception). In this way, law works as a kind of software (or malware) where social control is its object, and law itself is distorted beyond its normal purpose. As former law Dean at Nebraska and Harvard, Roscoe Pound, stated: “When men demand much of law, when they seek to devolve upon it the whole burden of social control, when they seek to make it do the work of the home and the church, enforcements of law comes to involve many difficulties. The purposes of the legal order are then not all upon the surface.”
Edmund Burke, in his 1775 Speech on the Conciliation with the Colonies, reports an American legal culture, and a law and law student culture, radically different than the one I describe today. Burke observed the “untractable” spirit of the early colonists who possessed the law as part of their powers of liberty, and were willing to actively advance these powers, rather than conform to perceptions of social custom: “This study [of law] renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. In other countries, the people, more simple, and of a less mercurial class, judge of an ill principle in government only by an actual grievance; here they anticipate the evil. They augur misgovernance at a distance; and sniff the approach of tyranny in every tainted breeze.” Do we still possess that instinct that can sense tyranny, or have we become numb and blind?
Echoing Burke, Alexander Bickel noted what is largely forgotten about constitutional law: the Supreme Court has limits to its most basic presumptions in authority (despite the Left’s determination to turn it into a super legislature): “No one is under any legal obligation to carry out a rule of constitutional law announced by the Supreme Court until someone else has conducted a successful litigation and obtained a decree directing him to do so. Any rule of constitutional law not put into effect voluntarily by officials and other persons who acquiesce in it, or not taken up by legislation and made more effective by administrative or noncoercive means—any such rule is not in our system an effective rule of law.” Judicial review is ultimately an authority of the people.
So, is law dead? If it is, then it is only because our American adversarial culture is. That culture, however, lives loudly in every American who can summon the memory, mind, and muscle of our Colonial independence. It is also a culture of consent, and duty. As Thoreau said, “The law will never make men free; it is men who have got to make the law free.”
Where does all this leave us, then?
Since Eugene Rostow organized his conference in 1970, a major shift in current affairs is obvious, but it is also a shift in the fundamental organization of legal thinking, or the enframement, through which thinking occurs. The concepts of rights and liberties were still assumed to be reliable even in the 1970s, and safeguarded by our government and laws which were accountable under a separation of powers, and subject to broad review and appeal. Moreover, the state could not violate individual conscience: somewhere in the public domain, ultimately stood law, and ultimately, law and justice would be found. Therefore, citizens were operating in a known game with known rules.
But suppose those rules no longer hold? Suppose appeals to rights can no longer be made to a functional state, operating with a functional, coherent, and independent chief executive, judiciary and legislature? Suppose our government has broken down (or “imploded” into a central, federal authority) or has been taken over by special interests? Suppose the entire underlying social order that we have lived by, is upended (or such disruption is sought by a radical Left)? Suppose instead, an authoritarian dictatorship becomes the new social order, with only the symbolic remnants of a democracy and free market still remaining? (as Nobel economist Kenneth Arrow warned, “In ideal dictatorship, there is but one will involved in choice; there is no conflict of individual wills”).
This is where law itself indeed dies. Then, the only appropriate preemptive or corrective behavior is not merely disobedience, objection or protest within a political system, but classic American revolutionary behavior from outside it. America’s Revolutionary mind is an expression of moral law that flows from what John Adams called “the real American Revolution”—that Jefferson called “the American mind.” Whether this mind is still intact and whole is a question. If it is dormant, it is because it has fallen asleep from decades of comfort, complacency and even cultural decay: A living law cannot remain alive in a dormant host. Yet in the emerging authoritarianism of 2021, with its proposed comprehensive invasions into personal privacy, property, bank accounts, medical information, religious and political association, “carbon usage” and even thoughts, thinking and expression, this is precisely the risk of submission to a new China-style “social credit” scoring system of obedience, combined with a techno-medical tracking and control program (such as “health passports”). To my mind, this is exactly what the American Revolutionary spirit is made to fight and defeat—and it does so by keeping the Western legal order alive. Justice may be blind, but law demands our eyes wide open.
Matthew G. Andersson is a science and technology professional, former CEO, and author. He attended the University of Texas at Austin and the University of Chicago. He is the author of the upcoming book "Legally Blind: How Ideology Has Captured the Law School, the Judiciary, and the Constitution,” and has testified before the U.S. Senate.
