You Are the Constitution

Our founding document was designed to maintain a wall between your private life and government. Modern law schools profit by tearing it down.

“A free society is as much offended by the dictates of an intellectual oligarchy as by those of an autocrat.”  – Patrick Arthur Devlin, The Enforcement of Morals

“In the social domain, the restraints that protect privacy are not in good shape. They are weakest where privacy impinges on the political domain, but the problem is broader than that. The grasp of the public sphere and public norms has come to include too much.” – Thomas Nagel, Concealment and Exposure

The liberal law academy likes to assert that the U.S. Constitution is “living.” They’re wrong: You are living. Without you, the Constitution is just a piece of paper. But modern law-school culture counts on public passivity and a legal bureaucracy. It thrives on state power because the law school is an arm of the state itself. It feeds fresh graduates to all the government branches and their sprawling administrative agencies, departments, and bureaus. It profits, thereby, from insidiously eroding privacy through legal pretext and endless government growth.

Law schools hate the Constitution because it limits them and empowers you. That is why “constitutional law” often involves finding ways to get around the Constitution. It was otherwise designed to maintain a wall between your private life and government. Law schools profit by breaching that wall in any way they can, even (or especially) if it means designing rules or legislation that break it.

This isn’t an argument for populism, but for public responsibility. Law schools may teach social justice, judicial activism, and adversarial legalism, but they’re short on individual accountability. John Stuart Mill’s lesser known but perhaps more important work, Considerations on Representative Government, stresses the complementary behaviors of participation and competence. Without all of us, the Constitution is just an inert, thin sheaf of papers. But who is us?

[Related: “Was Shakespeare Right? Should We Kill All the Lawyers?”]

One may look at our Constitution as a finely engineered jet airplane, or a well-tempered grand piano: it is capable of extraordinary performance, or it can crash; it can make balanced and harmonious music, or it can result in shrill, atonal dissonance. It all depends on skilled pilots and dedicated musicians; otherwise, it is just an assembly of parts sitting inert on a runway, or silent on a stage. Likewise, our Constitution is a fine product, but in malicious or inept hands it can malfunction easily, or never reach its potential.  Our current political economy is an example of the incompetence that makes the Constitution fairly inert.

We may appreciate, by contrast, the early American legal culture of broad public competence. It was central to the Constitution’s design, but there is more to it than that.

Ask yourself what kind of constitution today’s mainstream political economist or legal professional would write. In some ways, we have an abundance of “proxy-constitutions” scattered across our political domain. The Affordable Care Act (or “Obamacare”) for example, is a nearly 1,000-page legislative bill that, combined with associated law, reaches an astounding 20,000 pages, all of which serves a patchwork of special interests. The sprawling Patriot Act, meanwhile, was designed to effectively override the protections of the Bill of Rights by embedding it in synthetic emergency constitutionalism. So, too, is the current trillion-dollar “omnibus” spending bill that also tips 4,000 pages (this seems to be the writing standard from the law school graduates, staff, and consultants who are drafting these documents).

The U.S. Constitution, by comparison, is four pages. It is not misleading or dishonest, nor does it contain a hidden agenda. It is clear, if occasionally general,1 and focuses on one overriding goal: limiting government. It reflects the integrity and priorities of the men who wrote it (and compromised together in its ratification).

My general sense, however, is that we expect too much of this document, without realizing our personal role alongside it. Unfortunately, modern jurists—as well as most law professors and their flock—turn to the state, to the federal government, and to institutions to exorcise their social anxieties. Perhaps jurist and author Jerome Frank really was right that the law is a replacement for a father figure, reflecting a lack of intellectual and emotional maturity.

[Related: “Breaking Up the Law School Monopoly: Part 2”]

I’d like to suggest that the greatest divide between the early American jurist and today’s institutional technocrat rests in property. Not wealth, or status; not power, or ambition, but property—personal property, and the concomitant behaviors of protection, stewardship, longevity, and personal responsibility (this is also why economic “Georgism” is popular among parts of the radicalized Left).2

Part of the long debate over constitutional interpretation concerns differing views of property. The central reason why there is a consistent disequilibrium between that document and progressive politics is this: the Constitution was not written to accommodate the socialist state, nor a pretentious authoritarian intellectual class. It cannot be “stretched” into a progressive manifesto (which is why some law professors cannot patiently endure its democratic processes, and want to throw it out entirely). The Constitution is a classical liberal statement and business plan. It specifically seeks to guard against what the founders perceived: the attraction into federal government of interests hostile to privacy.

In America, a society committed to the rule of law arguably more than any other, the consistent assault on the Constitution that is incubated and systematized in our nation’s law schools represents something more than a mere difference of outlook or opinion: it is a challenge to America itself, a taking up of arms against the intellectual, spiritual, and organizational pillars of a specific society. This makes it more than subversive—it is hostile, but it is also a deception that rests on a fundamental conceit of elitism and an assumed superior judgement that is detached from consent.

Where better to hone the authoritarian exuberance of Plato’s Callicles than in the modern law academy?


1 “The claim that constitutional law is illegitimate, or a mere apology for the status quo, or an unacceptable threat of judicial tyranny, because it is, in a significant way, indeterminate, is itself inconsistent with our constitutional traditions.” – Gene R. Nichol, The Left, the Right, and Certainty in Constitutional Law, 33 Wm. & Mary L. Rev. 1181 (1992).

2 See, for example, the disingenuous work of Posner and Weyl in Radical Markets: Uprooting Capitalism and Democracy for a Just Society. The book has little to do with markets as we understand them in libertarian terms, and demonstrates a light grasp of Georgism and price theory. The University of Chicago has marketed this book to undergraduates as a kind of manifesto.


Image: Adobe Stock

Author

  • Matthew G. Andersson

    Matthew G. Andersson is a corporation founder and former CEO, management consultant and author of the upcoming book “Legally Blind,” concerning law education. He has been featured in the New York Times, the Wall Street Journal, the Financial Times, The Guardian, Time Magazine, the Chronicle of Higher Education, the Journal of Private Equity, the National Academy of Sciences, and the 2001 Pulitzer Prize report by the Chicago Tribune. He has been a guest on CBS, ABC, CNN, Bloomberg, Public Television, and the BBC, and received the Silver Anvil award from the Public Relations Society of America. He has testified before the U.S. Senate, and Connecticut General Assembly concerning higher education. He attended Yale College where he studied Russian language under department chairman Alexander Schenker; the University of Texas at Austin, Center for Russian, East European, and Eurasian Studies, and the LBJ School of Public Affairs where he worked with economist and White House national security advisor W.W. Rostow. He received an MBA from the University of Chicago Graduate School of Business in Barcelona, Spain and the U.S. He is the author of a text on law and economics used at Northwestern University, DePaul University College of Law, and McGill University Faculty of Law. He has lived and worked in Russia and Eastern Europe for a Fortune 100 technology company in strategic joint ventures.

3 thoughts on “You Are the Constitution

  1. May I suggest this book for enlightenment:

    Olson, W. (2011). Schools for misrule: Legal academia and an overlawyered America. New York: Encounter Books.

  2. Ever notice how many people have law degrees, but never did (or could) pass the bar exam? Many of these people ultimately found their way into media becoming political talking heads.

  3. I agree wholeheartedly, and offer one more point: The very existence of law schools promotes elitism. Tell a young adult that he or she will spend three years in a program and that at its completion he or she will receive a license which grants special privileges and makes him or her part of a government system, and that is a formula for getting people to view themselves as a ruling class. Abraham Lincoln attended no law school, and a typical case he handled involved a dispute over who owned a cow; while riding the circuit he often had to share a bed in an inn with two other lawyers. There is no way that his experience encouraged elitism.

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