Sixteen years ago I won the Book Award in Constitutional Law at the University of Florida College of Law. By Constitutional Law, I mean U.S. constitutional law as seen through the eyes – and pens – of the politically-appointed lawyers sitting on the federal government’s supreme court.
I learned nothing about the blatantly unconstitutional (and partisan) Alien and Sedition Acts of 1798 triggering the constitutional tripwire of nullification as sublimely presented in the Kentucky and Virginia Resolutions.
Professor Quarles never mentioned that President Madison vetoed an internal improvements bill for want of constitutional authority for such expenditures.
The constitutional legality of secession, arguably the most important right legitimizing a government of the people, by the people, for the people, was never discussed.
Absent from our readings was Hepburn v. Griswold (1870), in which the U.S. Supreme Court could find no constitutional support for the issuance of greenbacks – either as an express power or as a necessary and proper exercise of an expressed power – until one year and two presidential appointments later when the decision was reversed by Knox v. Lee (1871).
And we were required to regurgitate a view of the Supremacy Clause that is perversely different than the meaning attributed to it by those who actually ratified the Constitution.
In fact, my success in this mandatory course was due entirely to rote memorization of 20th century court cases – nearly all which involved the federal branch using the Constitution to rein in state governments. (With the lone exception of US v. Lopez (1995) in which a bare majority of the court gave a slight tug back on a Commerce Clause that Congress made elastic enough to regulate guns in and around school buildings in every county in the US.)
Standard law school curriculum purports to teach students to think like a lawyer. Well, yes and no. Lawyers are taught within the parameters of government-approved opinion. Within that framework, lawyers can and do prosper. But few lawyers betray any understanding of the fundamental and wholly one-sided transformation of our legal system from a constitutionally-limited, common-law based republic to a post-constitutional administrative state. The limited nature of federal power is hiding in plain sight textually, logically and historically. Instead, our analytical minds are trained to maneuver within the federal regulatory scheme. We can convincingly assess and argue liabilities under the EEOC, FLSA or Sarbanes-Oxley through federal statutes and interpretative case law. But we emerge from law school without the knowledge and tools to defend against the precipitous loss of individual liberty and property rights that the 1787 constitution was intended to protect against.
Law schools, of course, are only acting in their own best interests when they mint legions to work for the machinery of centralized government. Hyper-inflated tuition is fueled and sustained by unconstitutional federal loans. Federally-subsidized professors and administrators use tenure and little-read journals to recognize and reward those whose scholarship fits within the bounds of approved government-opinion. Conformity nearly always prevails; even the dissent is forced, Alice-in-Wonderland-style, to play by statist rules.
This explains why so few attorneys are on the forefront of the liberty movement. Who wants to upend the system that credentialed you? On the other hand, many enroll in law school with a hankering to fight for justice, poverty alleviation or for civil rights. How do we in the liberty movement dangle an intellectual lifeline to these folks?
Perhaps the Tenth Amendment Center will consider establishing chapters at our leading law schools to offer sound, constitutional correctives to the next generation of political and civic leaders. As an active TAC lobbyist in Pennsylvania, there’s nothing more exasperating than having to re-educate legislators (especially the lawyers) and their legal counsel on the Tenth Amendment, the Supremacy Clause and a historical record that firmly establishes state nullification as a proper remedy against constitutional transgressions by the federal government. Or maybe – I’m dreaming here –it’s time for TAC to open up its own law school.