- The American legal system has been corrupted almost beyond
recognition, Judge Edith Jones of the U.S. Court of Appeals for the Fifth
Circuit, told the Federalist Society of Harvard Law School on February
28.
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- She said that the question of what is morally right is
routinely sacrificed to what is politically expedient. The change has come
because legal philosophy has descended to nihilism.
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- "The integrity of law, its religious roots, its
transcendent quality are disappearing. I saw the movie 'Chicago' with Richard
Gere the other day. That's the way the public thinks about lawyers,"
she told the students.
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- "The first 100 years of American lawyers were trained
on Blackstone, who wrote that: 'The law of nature · dictated by
God himself · is binding · in all counties and at all times;
no human laws are of any validity if contrary to this; and such of them
as are valid derive all force and all their authority · from this
original.' The Framers created a government of limited power with this
understanding of the rule of law - that it was dependent on transcendent
religious obligation," said Jones.
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- She said that the business about all of the Founding
Fathers being deists is "just wrong," or "way overblown."
She says they believed in "faith and reason," and this did not
lead to intolerance.
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- "This is not a prescription for intolerance or narrow
sectarianism," she continued, "for unalienable rights were given
by God to all our fellow citizens. Having lost sight of the moral and religious
foundations of the rule of law, we are vulnerable to the destruction of
our freedom, our equality before the law and our self-respect. It is my
fervent hope that this new century will experience a revival of the original
understanding of the rule of law and its roots.
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- "The answer is a recovery of moral principle, the
sine qua non of an orderly society. Post 9/11, many events have been clarified.
It is hard to remain a moral relativist when your own people are being
killed."
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- According to the judge, the first contemporary threat
to the rule of law comes from within the legal system itself.
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- Alexis de Tocqueville, author of Democracy in America
and one of the first writers to observe the United States from the outside
looking-in, "described lawyers as a natural aristocracy in America,"
Jones told the students. "The intellectual basis of their profession
and the study of law based on venerable precedents bred in them habits
of order and a taste for formalities and predictability." As Tocqueville
saw it, "These qualities enabled attorneys to stand apart from the
passions of the majority. Lawyers were respected by the citizens and able
to guide them and moderate the public's whims. Lawyers were essential to
tempering the potential tyranny of the majority.
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- "Some lawyers may still perceive our profession
in this flattering light, but to judge from polls and the tenor of lawyer
jokes, I doubt the public shares Tocqueville's view anymore, and it is
hard for us to do so.
-
- "The legal aristocracy have shed their professional
independence for the temptations and materialism associated with becoming
businessmen. Because law has become a self-avowed business, pressure mounts
to give clients the advice they want to hear, to pander to the clients'
goal through deft manipulation of the law. · While the business
mentality produces certain benefits, like occasional competition to charge
clients lower fees, other adverse effects include advertising and shameless
self-promotion. The legal system has also been wounded by lawyers who themselves
no longer respect the rule of law,"
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- The judge quoted Kenneth Starr as saying, "It is
decidedly unchristian to win at any cost," and added that most lawyers
agree with him.
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- However, "An increasingly visible and vocal number
apparently believe that the strategic use of anger and incivility will
achieve their aims. Others seem uninhibited about making misstatements
to the court or their opponents or destroying or falsifying evidence,"
she claimed. "When lawyers cannot be trusted to observe the fair processes
essential to maintaining the rule of law, how can we expect the public
to respect the process?"
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- Lawsuits Do Not Bring 'Social Justice'
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- Another pernicious development within the legal system
is the misuse of lawsuits, according to her.
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- "We see lawsuits wielded as weapons of revenge,"
she says. "Lawsuits are brought that ultimately line the pockets of
lawyers rather than their clients. · The lawsuit is not the best
way to achieve social justice, and to think it is, is a seriously flawed
hypothesis. There are better ways to achieve social goals than by going
into court."
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- Jones said that employment litigation is a particularly
fertile field for this kind of abuse.
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- "Seldom are employment discrimination suits in our
court supported by direct evidence of race or sex-based animosity. Instead,
the courts are asked to revisit petty interoffice disputes and to infer
invidious motives from trivial comments or work-performance criticism.
Recrimination, second-guessing and suspicion plague the workplace when
tenuous discrimination suits are filed · creating an atmosphere
in which many corporate defendants are forced into costly settlements because
they simply cannot afford to vindicate their positions.
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- "While the historical purpose of the common law
was to compensate for individual injuries, this new litigation instead
purports to achieve redistributive social justice. Scratch the surface
of the attorneys' self-serving press releases, however, and one finds how
enormously profitable social redistribution is for those lawyers who call
themselves 'agents of change.'"
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- Jones wonders, "What social goal is achieved by
transferring millions of dollars to the lawyers, while their clients obtain
coupons or token rebates."
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- The judge quoted George Washington who asked in his Farewell
Address, "Where is the security for property, for reputation, for
life, if the sense of religious obligation desert the oaths · in
courts of justice?"
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- Similarly, asked Jones, how can a system founded on law
survive if the administrators of the law daily display their contempt for
it?
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- "Lawyers' private morality has definite public consequences,"
she said. "Their misbehavior feeds on itself, encouraging disrespect
and debasement of the rule of law as the public become encouraged to press
their own advantage in a system they perceive as manipulatable."
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- The second threat to the rule of law comes from government,
which is encumbered with agencies that have made the law so complicated
that it is difficult to decipher and often contradicts itself.
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- "Agencies have an inherent tendency to expand their
mandate," says Jones. "At the same time, their decision-making
often becomes parochial and short-sighted. They may be captured by the
entities that are ostensibly being regulated, or they may pursue agency
self-interest at the expense of the public welfare. Citizens left at the
mercy of selective and unpredictable agency action have little recourse."
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- Jones recommends three books by Philip Howard: The Death
of Common Sense, The Collapse of the Common Good and The Lost Art of Drawing
the Line, which further delineate this problem.
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- The third and most comprehensive threat to the rule of
law arises from contemporary legal philosophy.
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- "Throughout my professional life, American legal
education has been ruled by theories like positivism, the residue of legal
realism, critical legal studies, post-modernism and other philosophical
fashions," said Jones. "Each of these theories has a lot to say
about the 'is' of law, but none of them addresses the 'ought,' the moral
foundation or direction of law."
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- Jones quoted Roger C. Cramton, a law professor at Cornell
University, who wrote in the 1970s that "the ordinary religion of
the law school classroom" is "a moral relativism tending toward
nihilism, a pragmatism tending toward an amoral instrumentalism, a realism
tending toward cynicism, an individualism tending toward atomism, and a
faith in reason and democratic processes tending toward mere credulity
and idolatry."
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- No 'Great Awakening' In Law School Classrooms
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- The judge said ruefully, "There has been no Great
Awakening in the law school classroom since those words were written."
She maintained that now it is even worse because faith and democratic processes
are breaking down.
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- "The problem with legal philosophy today is that
it reflects all too well the broader post-Enlightenment problem of philosophy,"
Jones said. She quoted Ernest Fortin, who wrote in Crisis magazine: "The
whole of modern thought · has been a series of heroic attempts to
reconstruct a world of human meaning and value on the basis of ·
our purely mechanistic understanding of the universe."
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- Jones said that all of these threats to the rule of law
have a common thread running through them, and she quoted Professor Harold
Berman to identify it: "The traditional Western beliefs in the structural
integrity of law, its ongoingness, its religious roots, its transcendent
qualities, are disappearing not only from the minds of law teachers and
law students but also from the consciousness of the vast majority of citizens,
the people as a whole; and more than that, they are disappearing from the
law itself. The law itself is becoming more fragmented, more subjective,
geared more to expediency and less to morality. · The historical
soil of the Western legal tradition is being washed away · and the
tradition itself is threatened with collapse."
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- Judge Jones concluded with another thought from George
Washington: "Of all the dispositions and habits which lead to prosperity,
religion and morality are indispensable supports. In vain would that man
claim the tribute of patriotism who should labor to subvert these great
pillars of human happiness - these firmest props of the duties of men and
citizens."
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- Upon taking questions from students, Judge Jones recommended
Michael Novak's book, On Two Wings: Humble Faith and Common Sense.
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- "Natural law is not a prescriptive way to solve
problems," Jones said. "It is a way to look at life starting
with the Ten Commandments."
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- Natural law provides "a framework for government
that permits human freedom," Jones said. "If you take that away,
what are you left with? Bodily senses? The will of the majority? The communist
view? What is it - 'from each according to his ability, to each according
to his need?' I don't even remember it, thank the Lord," she said
to the amusement of the students.
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- "I am an unabashed patriot - I think the United
States is the healthiest society in the world at this point in time,"
Jones said, although she did concede that there were other ways to accommodate
the rule of law, such as constitutional monarchy.
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- "Our legal system is way out of kilter," she
said. "The tort litigating system is wreaking havoc. Look at any trials
that have been conducted on TV. These lawyers are willing to say anything."
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- Potential Nominee to Supreme Court
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- Judge Edith Jones has been mentioned as a potential nominee
to the Supreme Court in the Bush administration, but does not relish the
idea.
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- "Have you looked at what people have to go through
who are nominated for federal appointments? They have to answer questions
like, 'Did you pay your nanny taxes?' 'Is your yard man illegal?'
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- "In those circumstances, who is going to go out
to be a federal judge? People who have accomplished nothing. In other words,
federal employees."
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- Judge Edith H. Jones has a B.A. from Cornell University
and a J.D. from the University of Texas School of Law. She was appointed
to the Fifth Circuit by President Ronald Reagan in 1985. Her office is
in the U.S. Courthouse in Houston.
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- The Federalist Society was founded in 1982 when a group
of law students from Harvard, Stanford, the University of Chicago and Yale
organized a symposium on federalism at Yale Law School. These students
were unhappy with the academic climate on their campuses for some of the
reasons outlined by Judge Jones. The Federalist Society was created to
be a forum for a wider range of legal viewpoints than they were hearing
in the course of their studies.
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- From the four schools mentioned above, the Society has
grown to include over 150 law school chapters. The Harvard chapter, with
over 250 members, is one of the nation's largest and most active. They
seek to contribute to civilized dialogue at the Law School by providing
a libertarian and conservative voice on campus and by sponsoring speeches
and debates on a wide range of legal and policy issues.
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- The Federalist Society consists of libertarians and conservatives
interested in the current state of the legal profession. It is founded
on three principles: 1) the state exists to preserve freedom, 2) the separation
of governmental powers is central to our Constitution and 3) it is emphatically
the province and duty of the judiciary to state what the law is, not what
it should be.
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