Law School

THC graduated from Boston College Law School in 1976.  In retrospect I now realize that BC Law was near the end of its transition from a trade school, where one went to learn the practice of law, to a law school aspiring to the upper ranks of academia. BC was successful and is now ranked around #20 among American law schools.

THC didn't enjoy law school.  He was a poor student, more focused on getting out to a job than in studying.  With the help of Dean Huber, with whom he did an independent study, THC was able to work full time during his third year and just show up to exams for the two courses he was enrolled in.  Working did prove much more fulfilling than school.

Over the years, THC has witnessed the further transition of BC Law into an advocacy focused institution, like many of the other top law schools.  In its faculty, course selections, and in BC Law Magazine it is uniformly progressive.  It is about teaching students what the law ought to be in order to advance an ideological agenda, rather than what the law is.  The magazine is its periodical celebration of those who best advance the cause.

An example can be found in the most recent issue of the magazine, an article on a new book by constitutional law professor Aziz Rana, titled The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them, which calls for "significant changes to our system of government" in order to deal with the "overlapping pathologies . . . of our governing arrangements."  The core problem, according to Rana is:

"the existing order makes it especially difficult for today's multiracial and largely urban majority coalition to implement widely backed policies in response to significant social problems".

According to the article, Rana is gleeful that "creedal constitutionalism has begun to lose its hold on the American imagination", because progressives have been disappointed in recent elections and Supreme Court decisions.

Apparently the author is disappointed by the failure of FDR's court packing scheme in the 1930s, and admires "a little-remembered convention sponsored by the radical Black Panther movement and attended by a broad swath of the activist left, with the goal of replacing the Constitution with a more democratic document".

Professor Rana's views are representative of those of legal academia in the leading schools.  He has the right pedigree; Harvard undergraduate; Yale Law School; member Council of Foreign Relations; and Fellow at the Quincy Institute think tank which is aligned with the Iran-China-Russia axis.  And his views have been enthusiastically endorsed by Nancy Pelosi, according to the BC Law article.

The legal academy is part of the broader progressive movement which has tortured the meaning of democracy, so that its definition is now simply "anything progressives favor", while anything opposed to progressivism is "anti-democracy".  

It is from the ranks of the students in these top law schools that the next generation of lawyers and judges will be drawn from.  They come from a post-constitutional legal world where the only thing that counts is the result and furthering the progressive agenda.  In this world, for a judge to decide a case in a way consistent with the law but not supportive of the progressive agenda would be unthinkable.  The courts are essentially just another legislative branch.(1)

The purpose of the original constitution that progressive seek to overthrow was to establish a federal government with defined and limited powers that allowed for individual and regional diversity in beliefs and politics, and which did not impact most of the everyday life of its citizens.

The new constitution sought by those like Rana seeks to ensure a permanent entrenched federal regime in order to impose a defined set of beliefs and to punish dissent, while controlling the everyday life of its citizens.  Implementing the "widely backed policies in response to significant social problems" is merely the excuse for repression and crackdowns on freedom of speech.

If you want to see the difference between those who believe in the "creedal constitution" and those who believe in "whatever gets it done", watch this exchange between Joe Biden and Kamala Harris during a 2020 campaign debate.(2)

In response to Joe Biden's criticism of her proposed executive actions on guns, Kamala Harris references Barack Obama's slogan: "Hey Joe—instead of saying, 'No we can't' let's say, 'Yes we can."

"Let's be constitutional," Biden responds.https://t.co/qpCouATwrg #DemDebate pic.twitter.com/f9AlLKlgpc

— The View (@TheView) September 13, 2019

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(1) To illustrate the transformation from liberal jurisprudence to progressive legislative jurisprudence, we can look at Roe v Wade.  At the time, the 1973 decision received a great deal of criticism from legal scholars who supported liberalizing state abortion laws legislatively but felt Roe was bad constitutional law.  As liberal constitutional scholar John Hart Ely wrote in a 1973 article responding to the decision,"Were I a legislator I would vote for a statute very much like the one the [Supreme] Court ends up drafting", but, as a constitutional matter, he concludes:

It [Roe v Wade] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.

In 1970, Judge Henry Friendly of the Federal 2nd Circuit wrote a draft opinion regarding a challenge to New York's abortion law.  Because the state modified its abortion statute prior to the opinion being issued, the draft was never released, and Friendly passed in 1986.  However, the draft remained in one of his clerk's possession for thirty years before he spoke of it publicly and released the text.  Friendly was one of the most highly regarded Federal judges of the time and supported the passage of more permissive abortion laws by state legislatures.  However, Friendly's draft upheld the constitutionality of the New York law, despite his personal beliefs.  This article, describing the draft opinion, was written by his clerk.  Unfortunately, I have been unable to relocate the text of the draft though I read it online 15 or so years ago.

The analytical approach of Ely and Friendly is inconceivable for someone like Rana and, for that matter, most of today's progressives who see their role of using the judicial system to enact their legislative preferences.  I should note that there are still occasional progressive holdouts in legal academia for the more traditional view; see, for instance, Akhil Reed Amar of Yale Law School, regarding abortion, but their numbers are fast dwindling.

It is also why, in recent decades, when any politically sensitive issue is in front of the Supreme Court, the question is always whether one of the conservative justices will break ranks because everyone knows the opinions of the liberal justices will always conform to their policy preferences.

(2) After his election, President Biden adopted Harris' suggested approach to the Constitution.