“Professors believe they should be free to express their opinions and free of penalties for themselves and their institutions. That is asking quite a lot. If we could decrease our entanglement in contemporary policy issues, whether by anonymity or self-discipline, we would not invite the often-correct suspicion that professional knowledge was being used for partisan purposes. I hope for society’s sake that we become more professional in the use of our knowledge.” – George J. Stigler, Nobel laureate economist, University of Chicago, Academic Freedom and Responsibility
“Academic freedom is the freedom to do academic work.” – David Moshman, University of Nebraska-Lincoln, Liberty and Learning
Law professors in law schools—which are almost always attached to universities—have a problem. On the one hand, they have a professional obligation, a “duty” by the industry’s own Model Rules of Professional Conduct, to maintain objective teaching standards and to disseminate information in a balanced or even “neutral” manner (neutrality is to law as thermodynamics is to engineering—a fundamental, underlying principle). On the other hand, law professors are also part of a broad coalition of university faculty, who believe that academic freedom is generally a liberty with few if any boundaries. This can put law pedagogy in an awkward, and more importantly, counterproductive position regarding how we teach our future lawyers.
This problem is especially pronounced when law professors, not surprisingly, venture into constitutional politics. Here, another problem arises: The Constitution is not a political document. It is a business plan for setting up a government, and its central function is to circumscribe, or limit, how this government maintains its distance from your personal life. The Constitution is also uniquely focused on structure: on the separation of its branches and the necessary arms-length manner in which they operate separate from, and with, each other. As former Supreme Court Justice Antonin Scalia asserted, it is this structure, and separation, that protects the Bill of Rights. If the structure implodes, so do your liberties. This implosion of Federalism—a philosophy of a dual-structured government comprising a centralized federal government and dispersed state governments—continues to be a wedge issue among competing schools of legal philosophy and politics.1
Most law professors, unfortunately, believe that the Constitution itself and the structure of a “periphery and core” is subject to their unending interpretation of its language and applications, especially by emphasizing the core (the federal government) at the expense of the periphery (e.g., the promotion of a federal takeover of state voting, and modifications to the Electoral Count Act). This results in the well-known factions of originalism or textualism versus various schools of “living” constitutionalism. A living (or perhaps better, a conveniently plastic) document of governance can mean no governance at all, or effective anarchy—a system that often comports with the feelings and morals of the progressive, if not extremist, law academy. Take, for example, the “Summer of 2020” organized street violence and crime across several American cities, which was generally praised, tolerated, or ignored by the Left.
Something else is emerging among the law academy’s doctrines, however, which is precisely this philosophy of constitutional anarchy: throwing out the Constitution entirely. As I argued in a prior MTC essay, this kind of extra-legal extremism must consist of story-telling and rhetoric (a specialty of modern law training), in order to create emotional responses and new beliefs, especially among some of the most impressionable members of the voting public: university and college students.
Sometimes this story-telling can reach new heights of manipulation. For instance, see two professors from Harvard and Yale law schools, respectively, who argue in a guest essay in the New York Times that the United States has reached the limits of democratic consent and legal process, and that only a complete bypass of the Constitution itself will restore democracy. They triumphantly claim that “It’s time … to radically alter the basic rules of the game.” Fittingly, the essay is titled, “The Constitution Is Broken and Should Not Be Reclaimed.”
All of which brings me to a central point: law professors feel that they are at liberty to persuade the public, and their students, to accept a radicalized interpretation of the primary law that governs their private life—the Constitution. Such professors are not practicing legal philosophy, in teaching or even in the Socratic method, nor are they using their authority as barred lawyers to educate the public properly on both sides of an argument. Instead, they act as “hired guns” for political interests, and by so doing, they twist the law into something almost unrecognizable.
That is not their job. Their job is to maintain objectivity regarding a fairly limited set of finite legal subjects—contracts, property, torts, civil procedure, and, yes, the Constitution itself (versus constitutional law)—and to set young law students on a path of intellectual independence. Their responsibilities, and their formal higher duty, obligate them to follow both the American Bar Association rules and the rules of the American Association of Law Schools. Their job does not include ideological indoctrination, nor does it license them to moonlight as public relations assets on behalf of political parties. If that is their interest, then they are in the wrong business and should simply leave the law academy to work in commercial public relations. That is the beauty, and logic, of free markets.
Law professors, however, want it both ways. They want to enjoy the protections and privileges of university life and the behind-the-scenes role of acting as a legal agent for someone else, while extending their influence as if they were the principal or lead entity. As former appellate judge and University of Chicago Law lecturer Richard A. Posner puts it, “… neglect of issues of cost and incidence, indecision, wishful thinking, contradictions born of a desire to have things both ways at once, lapses into essentialist thinking, a certain thinness wearing the guise of judiciousness—are the failings more of a system than an individual. That system is academic law.”
If this is, as Posner asserts in Overcoming Law, a failure of an academic system, then one must set his attention on how our law schools are being managed and how law school deans are being supervised by their respective university administrations. In a climate of “anything goes” concerning academic freedom, that higher obligation includes maintaining the integrity of law itself and must draw our attention to the centrality of university leadership, one willing to put a stake in the ground which says “here, and no further.” In this respect, our universities may be under a state of managerial neglect, which may help explain how law professors can operate as employees beyond principles of professional conduct.
1 My appreciation to history scholar Shane Anderson, from the University of Illinois, Urbana-Champaign, for pointing out in a personal correspondence that “Federalism has never been given a formal legal basis, either in the U.S. or in England. Its precise nature and functioning seem to emerge only during a series of crises or when there was some level of federal overreach. The 1798 Alien and Sedition Acts, for example, provoked Jefferson and Madison to articulate the proper relationship between states and federal government, in what is famously known as the Kentucky and Virginia Resolutions which revolved around the idea of federalism, and arguing that states could nullify federal laws.” This may cause one to ask, in my view, what is actually the core, and what the periphery, and if we are again in such a constitutional crisis where federalism must be strongly reasserted.
Image: Chinnapong, Adobe Stock