The first was a gathering of self-identified “conservatives” entitled “Judicial Tyranny”, held in Washington, DC, April 7-8, details of which can be found at http://www.stopactivistjudges.org, sponsored by a group called the “Judeo-Christian Council for Constitutional Restoration”. In the discussion that follows, I will refer to this conference with the abbreviation JT.
The second was a gathering of self-identified “progressives” entitled “The Constitution in 2020”, held at the Yale University Law School in New Haven, CT, April 9-10, details of which can be found at http://islandia.law.yale.edu/acs/conference/index.asp, sponsored by a group, mainly composed of liberal-statist lawyers and law students called the American Constitution Society, http://www.americanconstitutionsociety.org/, which was formed to oppose the influence of the conservative-libertarian Federalist Society http://www.fed-soc.org. In the discussion that follows, I will refer to this conference with the abbreviation C2020.
The JT was only attended by about 100 persons, although they included a number of past and present public officials, such as U.S. Reps. Lamar Smith, Steve Chabot, and Todd Akin, or staff members representing Sens. Tom Coburn and Orrin Hatch. Former ambassador Alan Keyes spoke, as did former Alabama Chief Justice Roy Moore, and leaders of many of the conservative activist and evangelical Christian and Jewish groups. The first day of the JT was covered by C-SPAN, and the entire conference was videotaped, with DVDs of the proceedings available for purchase.
The C2020 was attended by a larger number, perhaps 600, mainly students from most of the universities that have ACS chapters. It appeared most were law students, and most of the students of the Yale Law School seemed to be there. The speakers and session leaders were mostly law professors or prominent lawyers. The only officials seemed to be some former judges. There did not appear to be any video cameras other than my own, and after I taped part of a general session a young lady on the conference staff directed me not to tape any of the breakout sessions, on the ground that it might inhibit candid participation. I took that to mean that the session moderators didn't want a record of what they would be saying to the student participants.
A sense of the C2020 can be obtained by visiting http://keywiki.org/Constitution_2020 and http://constitutionin2020.blogspot.com.
Neither conference presented any new papers or original contributions with which the attendees were not probably already familiar, other than a few handouts by the moderators in the breakout sessions.
Although the JT had a previously prepared "Declaration of Constitutional Restoration" with “action items” they wanted the conference attendees to approve and sign, the session was open to debate on the language of the Declaration. Several changes were made. Most of it was merely aspirational. I argued for deletion of two items that were unsound, the first of which is unconstitutional, and for the addition of a new item that would have advanced the cause, but the attendees were not prepared to understand my arguments and rejected my motions. However, in later conversation several said they agreed with me after further thought, and some decided not to sign the "Declaration of Constitutional Restoration" because of my arguments.
The C2020 did not discuss action proposals. There were general sessions at which a panel of 3-4 would take turns making their arguments for what was essentially a socialist agenda, although there were some mentions made of “reforms” that in practice would make it easier to elect liberal Democrats. At the end of each such session they took questions and statements from the audience, and I offered several myself, intended to introduce some new ideas to them. More about that later. There were also “breakout” sessions in which groups of 20-60 attendees were led by usually two moderators who made sure to frame the discussion to suit their agendas and make sure no new ideas not consistent with those agendas could be introduced. Every effort was made to encourage the attendees to recite a litany of socialist dogma, resistant to any challenges or innovation.
It is interesting that at both conferences many conference leaders claimed to be “constitutionalists”, and at least one of those at the C2020 actually claimed to be “strict constructionists”. People at both conferences complained of “activist” judges, but it was clear that the label applied to judges who made decisions they disagreed with, often without really understanding the constitutional issues. Both conferences were dominated by policy preferences, and in the case of JT, two action items, that are clearly inconsistent with the written Constitution as originally understood. The JT were more motivated to effect change, and the C2020 were more academically advanced, but from my standpoint they both have a long way to go to achieve what I would consider accurate and adequate understanding of the Constitution, of what is wrong in this country that relates to the Constitution, and how to make changes that might actually improve things from their own viewpoints. They also represent a cultural divide that won't talk to or listen to one another, or frame the issues in anything other than a conservative-liberal bipolarity, a term I choose deliberately to suggest it is a form of pathology that threatens this society.
Now in fairness to the people at both conferences, they are basically good people trying to do what they think is right. The people at the JT, however, were much more willing than the people at the C2020 to learn and consider new ideas, even though less intellectually prepared to do so. The people at the C2020, were, by contrast, amazingly closed minded, unwilling to consider anything that did not fit their ideological doctrines, even material of a purely mathematical character. They are two herds, composed of members unwilling to wander from the herd, although the JT people might eventually move in a new direction with enough guidance and thought. I suspect only hard experience will bring around the people at the C2020, and they aren't likely to get that in the academic world or even in conventional legal practice. At both conferences I said things and took positions that were fairly simple, straightforward, accessible, and not inconsistent with their ultimate goals, but which left the attendees stunned by incomprehension, unable to intelligently respond, even to ask questions. It is clear that if this country is ever to attain constitutional compliance, there is a lot of work ahead and not much time to get it done.
If we are to try to identify a single intellectual deficit of both groups of people it is what might be called linear thinking. Most members of both groups have a vague familiarity with the notion of unintended consequences, but it seems unlikely that many, or even any, of them know what a feedback loop is, outside of something that is a problem with sound systems, or how complex systems of many interacting feedback loops respond to interventions in nonintuitive and not easily predictable ways. They persist in seeking solutions to problems that are simple, direct, obvious, and wrong. The interesting thing is that they are not that far apart in their views of the ultimate state of society that is desirable. Where they differ is in their perception of the alternatives actually available and how those chosen would play out. I have noted before that it seems like the few people who grasp constitutional issues readily and competently are mostly comprised of persons with backgrounds in computer science and complex systems engineering. The “informal reasoning” taught to lawyers and most other people today does not prepare them to make policy or constitutional choices. Unfortunately, that too often means such decisions are either made badly, or are made by specialists paid to obtain an outcome favorable to some special interest against the best interests of society in the long term.
Society and constitutional issues were simpler in the Founding Era, and it took highly motivated men of genius and a society of constitutional scholars to make constitutional choices that were barely adequate to the problems they faced then. Today the few who might make competent choices of that kind, to deal with the current complex situation, are marginalized and largely disregarded, and most today in decisionmaking positions come nowhere close to being able to attain even the level of understanding that the Founders struggled to achieve. People today have the tools to enable them to pretend to be wise, and to delude themselves into thinking themselves less inadequate than they are, but as long as they continue this self-delusion, they will never make the enormous effort that adequate understanding requires.
The final approved form of the Declaration of Constitutional Restoration issued from the JT can be found at their website. Most of it is aspirational and unobjectionable, but it contains two items that are objectionable from a constitutional standpoint, and one from a policy standpoint:
2) Congress should withdraw jurisdiction from all federal courts to hear any challenge to the Defense of Marriage Act, state marriage acts, or state constitutional provisions, which are claimed to be a violation of the U.S. Constitution.
3) Congress should withdraw jurisdiction from all federal courts to hear all challenges to the acknowledgment of God as a violation of the First Amendment Establishment clause, rightfully returning these matters to the several states.
5) When and where appropriate, Congress should reduce or eliminate the funding of federal courts, the salaries of judges excepted, that overstep their constitutional authority.
I made motions to delete (2) and (5), even though I also object to (3) on the same grounds as (2), but for the purposes of that effort it was sufficient to make my arguments once.
In my argument in support of my motion to delete (2), I admitted that there is a U.S. Supreme Court precedent, which I did not name, Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868), the opinion on which is at http://www.constitution.org/ussc/074-506.htm), that seems to support such congressional removal of jurisdiction from all courts, but that it was clearly decided wrongly. As I argue in my commentary at http://www.constitution.org/ussc/074-506jr.htm the purpose of having a judicial branch is to decide questions arising under the Constitution and laws authorized by it, that if Congress could constitutionally remove jurisdiction from all federal courts on one subject, they could do so on all subjects, and they could effectively destroy the judicial branch and subvert the Constitution by adding a provision to every bill that “federal courts shall not have jurisdiction to decide on the constitutionality of this act”, then proceed to enact something like “voters may vote only for the candidates approved by the Select Committee”.
In defending the provision, a member of the drafting committee, a lawyer, cited the McCardle decision, and while he seemed to recognize the logic of my argument, argued that it was not unconstitutional to do this on these particular subjects. Of course, this doesn't work, especially when as in (2) it is applied to an Act of Congress. Although it has not been often invoked, the McCardle decision is one of the more pernicious, subversive, and potentially dangerous USSC decisions ever made. If people are going to complain of judicial tyranny, they should not make proposals that rely on instances of it.
In my argument on a motion to delete (5) I said that one of the main reasons for judicial tyranny is overcrowded dockets due to inadequate funding, which, as long as the judges are paid, doesn't hurt the judges, but only the litigants, and results in too many decisions made hastily, without due consideration of the arguments, often on the basis of personal relations with the lawyers. Reducing funding of the courts would not put pressure on judges to make better decisions, but worse ones, and removing all funding would not just inconvenience the judges, but would have the effect of removing their dockets, so that they could play golf while receiving their salaries, perhaps sign a few ex parte orders for their buddies, while litigants would be screaming for justice and perhaps resorting to violence and civil disorder when they didn't get it. This proposal is another example of one that is simple, direct, obvious, and wrong, that would produce results exactly the opposite of what is intended.
Now part of what is going on here is an effort of some conservatives to increase the power of Congress at the expense of the Judiciary, because they perceive that they now control Congress, and that the liberals control the Judiciary. Interestingly, at the C2020 a panelist made the statement exactly to that effect, that progressives control the Judiciary and need to gain more control over it, largely, it seems, by indoctrinating the next generation of lawyers and judges. A number of others, especially leaders of the conference, made statements about finding ways to make sure only progressives "ascended", to the bench, to clerkships, to academic roles, or to other positions of influence. They spoke in a way that indicated they were part of a concerted effort to accomplish that.
The reality, of course, is that both sides are wrong, from a competent constitutional standpoint. More than 98% of the instances of judicial tyranny consist of sustaining unconstitutional acts of Congress and the Executive Branch, so it is not a solution to reduce the restraint of the Judiciary on those usurptive branches. In the rare cases in which federal courts have overturned acts of the other branches, they have almost always gotten it right. The single most important thing the federal courts need to do to reduce judicial tyranny is to hold more acts of Congress and the Executive Branch unconstitutional. As sympathetic as I may be to the concerns of the people at the JT, I am concerned that they are unwittingly playing into the hands of a faction for whom “constitutional restoration” is only a cover for an unconstitutional agenda of their own.
After my motions to delete items (2) and (5) were rejected, with not a single vote in favor other than my own, I proposed adding an item that might ultimately operate to restore constitutional compliance:
Congress should amend the Rules of Judicial Procedure to require that in all cases in which the government is a party, all issues of law shall be argued in the presence of the jury, that the jury shall receive copies of all pleadings, and that the jury shall have the use of an adequate law library.
In support of my motion I explained that in the late colonial and early Republic period it was standard due process to argue all issues of law in the presence of the jury, because even though they were not asked to decide motions, in rendering a general verdict, such as guilty or not guilty, they were necessarily ratifying the decisions on motions by the bench, and could not properly bring such a verdict without hearing the evidence of the argument on the motions and the ways the decisions of the bench were made.
I made the same argument in a question I put to a panel at the C2020 that included the lawyer David Boies, asking them to join me in supporting the proposal. More on that below.
After I made my argument at the JT, long-time conservative activist Howard Phillips rose to support my proposal in the future, but said it thought it was premature at this time. The lawyer on the drafting committee was asked what he thought and said he would need a few months to study the matter. When the vote came, I did get some timid votes, indicated by the ayes being spoken softly, but the nays were louder and more numerous. I wonder whether, if there had been several votes, more of the attendees, realizing there was some support, might not have joined in supporting it, sensing the movement of the herd.
The somewhat limited proposals of the Declaration of Constitutional Restoration should be compared with the more comprehensive, detailed, and effective proposals contained in several documents on my website:
1. Constitutionalist Platform http://www.constitution.org/pol/us/consplat.htm
2. Declaration of Constitutional Principles http://www.constitution.org/consprin.htm
3. Statement of Grievances and Demands for Redress http://www.constitution.org/grievred.htm
4. Legal Reform Act http://www.constitution.org/pol/us/leg_ref_act.htm
I provided printouts of these documents to the lawyer on the drafting committee for their consideration in drafting future proposals. We will see what becomes of that.
In contrast, there was no opportunity to hand out papers at the C2020. Only the moderators of the breakout sessions seemed to have been allowed to do that. The conference leaders seemed to be trying to maintain tight control over what was said and read. The most I was able to do, other than during the general session questions, was to mention www.constitution.org and pass out my business cards.
I made three question-comments in the general sessions. The first was to a panel composed of Guido Calabresi, Judge in the U.S. Court of Appeals 2nd Circuit, and Patricia Wald, former Chief Judge in the U.S. Court of Appeals DC Circuit, and moderated by Paul Gewirtz:
If we are to take seriously the authority of the written Constitution as the “Supreme Law of the Land” then we need to re-examine the way we have come to use stare decisis, and recognize that in treating judicial precedents like constitutional enactments, untethered to the written Constitution as originally understood, we are making judicial decisions that are in fundamental conflict with the written Constitution.
Judge Calabresi made an intelligent response to my comment, explaining to the audience that each decision based on a previous decision can drift away from the written Constitution, and that it may become necessary to “ratchet it back” by reversing some of those precedents. Judge Wald did not respond directly to the point, but identified herself as a “strict constructionist” on some issues. It would be interesting to explore further what she meant by that.
My second question-comments was made to a panel consisting of law professors Yochai Benkler, Pamela Karlan, Burt Neuborne, and Nate Persily, moderated by Robert Post. Their discussion had been on partisan gerrymandering, so I said:
I filed an amicus curiae brief in Session v. Perry, the Texas Redistricting case. I found there were two groups of litigants, one arguing for setting aside the 2003 map gerrymandered in favor of the Republicans, and returning to the map of 2001, gerrymandered in favor of the Democrats, and the other favoring the 2003 map. In my amicus brief I argued that the arguments for setting aside the 2003 map are valid, but also apply to the 2001 map, and no one was representing the Constitution or the people with a nonpartisan solution. In my brief I proposed using computer software developed by the staff of the Texas Legislative Council that works very well to randomly draw maps that are equal in population, compact, contiguous, aligned to political boundaries, and simply-connected, and have it draw many such maps, selecting one at random, leaving the legislature with only the task of legislating the specifications for the program to draw the maps, without human intervention in the actual drawing. This nonpartisan solution did not come from a Republican or a Democrat, but from a Libertarian.
There was no response to my comment, indicating to me that the panelists had no interest in nonpartisan solutions, only in advancing their own partisan agenda any way they could.
My third question-comment was made to a panel composed of lawyers David Boies, John Podesta, Theodore Shaw, and Kathleen Sullivan, moderated by Walter Dellinger:
The standard of due process during the late colonial and early Republic period was to argue all issues of law in the presence of the jury. This is shown by transcripts of some of the trials during this period, some of which can be found online at www.constitution.org. This is not the practice today. It was recognized then that although juries were not asked to decide motions, in bringing a general verdict of guilty or not guilty they were necessarily ratifying the decisions of the bench on motions, and they could not bring a verdict intelligently if they could not hear the legal argument and decide whether the bench had decided correctly. Are you prepared to join me in trying to remedy this departure from due process and get all legal issues argued before the jury?
They didn't respond, other than that David Boies had a surprised and perhaps alarmed expression on his face, and the moderator, Dellinger, said the proposal was “interesting”.
The first breakout session I attended was moderated by Bruce Ackerman and Jacob Hacker, but Ackerman took control of recognizing people to speak. He recognized me once, and I said, in response to confusion about how economic inequality occurs and persists:
These problems are well understood, but the understanding is not spreading rapidly. For example, if you go to www.constitution.org, click on Basic Principles, and scroll to the bottom, you will find links to papers on aggregating networks. This research explains how the rich get richer, why equal distributions of wealth are unstable, why monopolies occur, and why a single species will displace all others in an ecological niche.
Ackerman asked me to summarize the research, which I did. But thereafter he pointedly refused to recognize me for further participation, turning to each of the others several times. It was clear that he didn't want the introduction of new ideas.
One thing that was interesting was Ackerman's pushing of his proposal that the rich be taxed enough to pay everyone, including the rich, $80,000 a year, without them having to do anything to earn it. He admitted at one point this might cause problems like capital flight (no kidding!), and he seemed oblivious to the problem of who is going to produce anything to tax if no one has to work. Perhaps Americans are to own the production of the rest of the world and pay themselves dividends for exploiting foreign labor. Hmm. Doesn't sound very progressive to me. No wonder they didn't want the breakout sessions taped.
After the session, I shook his hand and said, “Thank you for systematically ignoring the one person here who actually has solutions.” He grinned and said, “You have solutions?” Of course, progressives don't want solutions. They want the problems to persist that justify their activities. Like government workers everywhere, actually solving problems would put them out of their jobs.
That session with Ackerman ended early, so I had time to slip into another breakout session just before it ended, and I said:
All these discussions are ignoring the problems of legal and judicial misconduct and abuse. I cite as typical the case of a former lawyer who represented clients in seven civil rights cases against the Police Department of Lago Vista, Texas, one of which, Atwater v. Lago Vista, went to the Supreme Court, but without the original attorney, because the police chief went to a federal judge, who got the FBI to investigate the attorney, and miraculously “discover” that two sevens had been turned into nines in his social security number, which they used as the basis for a federal criminal charge, punishable by 5-30 years, which they used to pressure him into giving up his bar card, and thus drop the cases. Law professors teach law without criticizing judicial misconduct, because they are lawyers who can be disbarred for doing so.
The room responded with stunned silence. No one had anything to say about the problem of corruption in the courts and the practice of law.
Of these two conferences, clearly the JT was on a more promising track. Like most of them I grew up in a very different America, a small town in Texas where what are sometimes called “moral values” or “family values” were triumphant. There was some economic inequality, but no one was starving, and everyone who wanted to work could get a job and live comfortably. There were social circles, but no real social inequality. Everyone, rich and poor, went to the same churches and their kids attended the same schools. The kids went to school to learn, not to disrupt, making teaching them easy. Almost no one got divorced. There were no narcotics, almost no crime, no bullies, no gangs, and the kids didn't have too much money to spend, but had to earn it themselves. Everyone was on the same track to get as much education as possible, then start a career, and then and only then get married, have sex and start a family. It was idyllic, not just from a “conservative” viewpoint, but from a “progressive” one as well. Those were words we read in American history textbooks but they didn't have much relevance to our daily lives.
The situation was different in the cities, where the breakdown of values, as seen today, began, but even there the small town values prevailed until fairly recently.
But I witnessed the breakdown, and observed it closely. I understand very well what happened and why, and what might work to undo the decline, and what won't. A lot of people do, but too many people don't want to listen to what they have to say. They prefer their own theories and their own solutions. This is not the place to expand on what I learned about this, except to point out that it has nothing whatsoever to do with whether there is prayer in the schools, or whether homosexuals call their couplings “marriage”, or any of the many other things that too many people fasten on as the silver bullets to fix the problem of declining moral values. Until such folks, however earnest they might be, learn to put aside their delusions and come to understand what is really going on, they are likely to be more a part of the problem than a part of the solution.
Fortunately, these two conferences are not all that is going on in the field of constitutional compliance. If they were we would be in a desperate state indeed.
1 The ACS should not be confused with the Constitution Society, http://www.constitution.org, which I represent. They initially took the name Madison Society, but found another organization already had that name, and that we already had the name Constitution Society. Some have suggested a better name would be Anti-Constitution Society.
2 The transcripts of such trials, supporting my thesis, can be found at http://www.constitution.org/trials/trials.htm .
3 “Evolving Complex Networks in Constitutional Republics”, by Jon Roland, http://www.constitution.org/ps/ecncr.htm .