There is a nomocratic and teleocratic view of the Constitution. The nomocratic view, which accorded with the original understanding of almost everyone involved, is that the Constitution was designed to bring government under the rule of law, as opposed to achieving any specific purposes. The intention is evident to anyone who will take the trouble to read the document. The Constitution is primarily a structural and procedural document, specifying who is to exercise what powers and how. It is a body of law, designed to govern, not the people, but government itself. And it is written in language intelligible to all, that all might know whether it is being obeyed. The alternative teleocratic view is one that has come into fashion only during the last few decades, and has all but destroyed the original Constitution. This is the notion that the design of the Constitution was to achieve a certain kind of society. The most effective advocate for the teleological view was Supreme Court Justice William J. Brennan, who during a third of a century after his appointment in 1956 was arguably the most powerful—and I would add pernicious—figure in American government. — Forrest McDonald, Forward to Original Intentions: On the Making and Ratification of the United States Constitution, M.E. Bradford
In a recent American Thinker article, “The Supreme Court is Already Packed,” I argued that the U.S. Supreme Court has a “packed wing” of justices who tend to rule as a block. That block is ideologically progressive. It appears to act on behalf of strictly partisan political objectives. Part of this problem stems from the way the court is also “packed” in its representation of law school alumnae: out of a total of nine Supreme Court judges, four are from Harvard, and three from Yale. The progressive block is almost exclusively from Harvard Law, including its former dean. This tends to create social solidarity and groupthink instead of hard legal questioning and reason. This intellectual distortion starts in law school itself, which in constitutional law terms, is dominated by just three out of two hundred national law schools: Chicago, Yale, and Harvard. Two in New England and the other in the Midwest; all three, solid blue. How can the U.S. Constitution be upheld under such extreme geographic, cultural, and institutional monopoly concentration?
These three law schools are not alone. As institutions of higher education, they are vulnerable to ideology, political partisanship, and special interest influence that can corrupt their professional obligation. But it is a corruption they seem to embrace and explicitly champion through teaching.
UChicago, Yale, and Harvard have formed an effective monopoly trust and consolidated legal ideology into a unified political organization, thereby corrupting both law and legal teaching. They have done this in part by managing a closed network that integrates their graduates into the law school system, acting as teacher-indoctrinators; into judicial clerkships, influencing judges; and into government administration, bringing the ideology and tools of government growth and regulation. This directly corrupts legal thinking as it is experienced by the public, and so corrupts the public welfare model that the law schools broadcast as their stated theoretical framework.
[RELATED: Should the U.S. Close Its Graduate Law Schools?]
“Corruption” is a strong word. Let me describe what I mean by it. Corruption is often associated with politics and implies “organized crime” behavior involving payoffs, bribery, extortion, kickbacks, and favors. Tammany Hall law courts, run by the Democratic party as a patronage system in New York City from 1789 to 1950, are the corruption archetype in law. Today, the teachers’ union is also routinely criticized for corruption in how it promotes strictly progressive, if not activist, viewpoints, while overseeing a corrupt monopoly for public school wages and benefits.
However, it also has a technical meaning. It can refer to “system” corruption in the way a system operates. Software is an obvious example. You could also include thinking. This includes misperception of facts and faulty analogy. Beliefs and logical fallacies, such as wishful thinking, can stem from excessive ideation, maladaptive daydreaming, and what economist Harold Demsetz called the “Nirvana Fallacy.”
University professors can often find themselves insidiously consumed by corrupted thought processes and falling into one or more behavioral decision traps involving bias. This may not be a problem by itself, but when teaching is involved, it is.
One of the most well-known corruptions in economic science is the problem of unnatural monopoly. Sometimes, natural monopolies—one or two firms providing most or all of a particular product or service—can make sense if costs are unusually high (like airlines) or if one provider can most efficiently deliver a commodity (like water or electricity).
An “unnatural” monopoly was on full display at a recent University of Chicago Constitutional Law conference, attended by Yale, Harvard, and a handful of other institutions that follow their lead. A few details may help show what the problem is.
Out of 200 ABA law schools, speaker representation consisted of sixteen professors from twelve law schools, but was almost uniformly affiliated with just one: Yale. Speakers either overwhelmingly graduated from Yale Law, taught at Yale, were visiting faculty at Yale, published through Yale, and/or were hired from Yale. Moreover, nearly all the speakers were Democrats—98.4 percent of Yale faculty and staff donated to the DNC party, totaling nearly $1 million.
Moreover, the small sample of law schools were all effectively from the geographic north. There were no law professors from Mississippi, Alabama, Georgia, Florida, the Carolinas, Nevada, Colorado, Louisiana, Oklahoma, Nebraska, or Missouri nor from a dozen other places. So how could this be a conference about the U.S. Constitution? If it were a constitutional convention, it would have no authority and would be disbanded.
Some speakers were among the academy’s most activist and politically radical. The Constitutional Law Institute itself is run by a UChicago Law professor, a Yale Law grad, who is irrationally hostile toward the U.S. President. Indeed, he argued publicly that the President should never have been allowed on the ballot because he was “convicted” in a state case that disqualified him. When the president prevailed on a Supreme Court appeal, the UChicago Law professor published an academic essay, stating summarily that the court “produced a flimsy decision,” that it “tried to sweep Section Three under the rug,” that the president “remains constitutionally disqualified from the presidency,” that the court was “flagrantly wrong,” and “postponed the day of ultimate constitutional reckoning.” This strange tirade is used as a teaching document. Moreover, no analysis of the underlying case facts were ever tested for significance by the professor: they were merely accepted as prima facie, resulting in law students exposed to a corrupted standard of evidence, and a violation of regulatory duty to objective, neutral principles in law, and law teaching. This includes the American Bar Association’s higher duty obligation to the public.
[RELATED: How the Modern Law School Promotes Political Division and “Lawfare”]
But there’s more.
The new dean of UChicago Law has written a book on constitutional law as “rights.” The famous Marxist “fist in the air” on its cover signals resistance, political subversion, and violence.
This manifesto frames constitutional purpose in a corruption of the teleocratic model, advocates a destructive latitude toward the Constitution, and abandons the nomocratic, or rule of law, model constitution. The law dean’s argument is that the U.S. Constitution is no longer the central “dependent variable,” but now, only one of many independent variables that merely serve, or stand in the way of, social progressivism and the political mission of radical “reconstructed” law. That is, there is an effective “small-c” constitution that is established by rights, and public opinion, and those may override the Constitution itself. Along with Yale, whose senior law professor believes the U.S. Constitution should be “thrown out” and Harvard Law’s counterpart, who thinks there is an “invisible” constitution, the UChicago-Yale-Harvard axis is an axis of legal radicalism and anti-American bias. (See “TRANSFORMING LAW EDUCATION. RECLAIMING LEGAL THINKING: An Essay on the US Law School in the Modern University.”) At UChicago’s undergraduate “Law, Letters and Society” program, constitutional radicalism is more explicit: it recently held a conference describing an “Incite” program directed as “critical resistance” and a new “Abolitionist Constitution.” This is the University’s pre-law program?!
UChicago, Yale, and Harvard also conform to the national lobby group ACS, or the “American Constitution Society,” whose progressive mission is to “redress the founding failures of our Constitution.” ACS has installed “chapters” in nearly every ABA law school, which follows its curriculum design of constitutional subversion through political activism.
The irony of the Chicago-Yale-Harvard collusive trust—whose universities have also faced scrutiny for collusive behavior beyond their law schools, such as a multi-million dollar antitrust settlement over a tuition price-fixing cartel—is that, when taken to its logical conclusion, it results in not just the loss of constitutional order, but of legal, social, and moral order, making the management of modern law schools a critical public welfare question.
