Our Fall 2010 cover story on Robin West ’76, philosophy, who is Frederick J. Haas Professor of Law and Philosophy and an associate dean at the Georgetown University Law Center (“Courting Controversy”) drew a lengthy response from another alumnus, Mark Tyler ’99, history. We published a version of his letter – edited for space – in the Winter 2011 issue of UMBC Magazine. Tyler’s full letter appears below.
Dear UMBC Magazine:
Your featured article on Georgetown University Law Professor Robin West presented your readers with a couple of disturbing ideas. Please allow me to address, and in some sense, respond to them:
1. That our judicial system, in its present form, has lost sight of “justice” as that term is defined by progressives.
In your article, West appears to correlate the term “justice” with the notion of creating “greater social cohesion.” Further, she is critical of courts because they do not appear to “acknowledge the positive…roles that government and politics play in public life.” When has “the creation of social cohesion” been the independent purpose of the judiciary in our constitutional system? Article III of the U.S. Constitution, and I would imagine a vast number of state constitutions, are all intentionally silent on this point. Indeed, if that were a goal or purpose behind judicial review, then the most popular opinion of the time would always win since it would create the greatest public happiness. Disputes are brought to the attention of the judicial branch precisely because there are seemingly intractable positions on either side of the dispute. In resolving a case and granting judgment in favor of one side over the other, courts will necessarily render a decision unpopular with some, and in some cases, a vast majority of the public. Consequently, the importance of the rule of law in interpreting and deciding cases becomes apparent. Although the goal of achieving a more harmonious society may be appropriate for a legislature, which is trying to draft laws that achieve great social ends, it should not be a goal for the judiciary, whose sole and limited power should be the review of the law and its applicability to a certain dispute.
Further, West’s concern that our courts are seemingly unable to “acknowledge the positive role that government plays in public life” needs to be labeled for what it really is, a rallying cry for contemporary socialism, always critical of the classical liberal underpinnings of our government. Law Professor Richard Epstein noted in his essay, How Progressives Rewrote the Constitution, the limited purposes for our federal government when he stated, “[o]ur Constitution is a classical liberal document insofar as it recognizes, implicitly, an inherent state police power that allows collective action to enforce the criminal laws against force and fraud, to prevent nuisances, and otherwise to restrain activities that violate the rights of others.” However, woven into this framework is the power-limiting concept of federalism, ever present to limit the scope of federal power beyond those enumerated in the Constitution. Perhaps West’s real criticism is against either our federalist framework, the public’s distrust of the scope and size of government, or even our Constitution?
2. Correcting the judiciary’s inability to bring about “justice” could be changed by teaching lawyers in the study of “the common [or social] good.”
How I would love to be a fly on the wall of such a class! Your readers appear to be treated to a small taste of such instruction in the form of her example - the state’s interest in the institution of marriage. She noted that, “[m]arriage’s role as a de facto social safety net may have made sense in the 19th century,…but the present world of single parenthood and extended life-spans present different challenges for today’s families.” Marriage has never been just a “safety net.” It has always been a sought-after, stabilizing social institution for our society that generally provides, in greater abundance than single-parenthood, for the economic and social needs of our children, has limiting effects on the pervasiveness of the social harms/costs found in promiscuity and illegitimacy, and promotes the social good.
I hope I am not the only reader who is concerned about the potential for political indoctrination that could come from such instruction in the academy. After all, given West’s blatantly progressive perspectives on how “justice” should be achieved, this attorney has great concern about the instruction she proposes in our legal academies. She may not be laying out a blueprint for a “Ministry of Love” like that found in Orwell’s novel, 1984, but any proposed step towards instruction that seems bent on teaching students to love and appreciate “big brother” or socialism is troubling to this classical liberal. Perhaps because progressives are concerned they have lost their ability to drive jurisprudence, they are looking for what they still have a monopoly on, the use of the ivory tower.
The policy-related issues raised by West are better hashed out in the arena of legislative debate, not courts, where ultimately, a court must be either a trier of facts as applied to a given law, a determiner of sentence/judgment as applied to a given offense, or an interpreter of meaning as applied to a given legal ambiguity. I believe West’s fundamental point is that progressives are finding the present resurgence of either classical liberalism or legal formalism in our jurisprudence to be frustrating to their/her agenda.
However, this attorney is troubled by the idea that this turf war between progressivism and classical liberalism or even formalism is somehow evidence of the failure of the judicial system, simply because progressives perceives themselves to be on the losing side of some recent case law. Moreover, intentionally turning our law schools into breeding grounds for future legislators indoctrinated by progressivism is equally troubling. I believe your readers should continue to hold hope in the rule of law, as it is presently constructed and executed by our courts, with the belief that the common law, which has been built over hundreds of years of human history, has mechanisms within it to deliver ‘just’ results.