Archconservatives, especially among lawyers, are fond of proclaiming that the purportedly liberal professoriate is out of touch and has no concept of law as it is practiced. Some are; I can even name some of them. But when a named-chair conservative professor begins conflating "rules and jurisprudence" with theocracy, one begins to suspect that it's about something darker and more devious than even mere secular ideology can explain. Something implied by Plato's rejection of the rule of the philosopher-kings as actually leading to a society in which he — the one who created the philosopher-kings in one of the first great gedankenexperiments — would choose to live.1
In his "review" of Justice Stevens' autobiography, John McGinnis (Northwestern) spews forth a theocratic pile of bilious vomit. If you have a strong stomach (and nothing handy to throw against a wall that might damage the wall), you can read the whole thing; here's a taste.
But the most serious vice of this book has one related virtue: it captures the fatal flaw of Stevens’ jurisprudence. He believes that facts should generally decide cases, not rules or jurisprudential theory. He is quite candid about the source of this belief—the education he received at Northwestern, my own law school, from which he graduated with great distinction. He notes that “instead of organizing the subject studying cases involving one rule after another, the books [from which he was taught at Northwestern] included separate chapters for cases involving different types of fact patterns.” Thus, his education did not structure law through rules, like that of consideration in contracts, but factual areas, like contracts for goods and contracts for services. His legal universe was carved up into different things, not discrete doctrines.2
I've quoted the entire paragraph to hopefully limit the accusations that I'm taking McGinnis's spew out of context. Of course, the irony of being accused of "taking out of context" an ardent, and theocratic, proclamation that "rules and jurisprudential theory" are necessarily superior to mere facts would no doubt escape any such critics.
More than a few historical facts thoroughly refute McGinnis's position. For example, in no particular order:
- Fred Korematsu was sent to a detention camp on the basis of counterfactual doctrine.3
- Dred Scott is a similar self-inflicted wound, because Scott's ancestry — in its most obvious aspect, the color of his skin — formed the factual basis for his enslavement in the first place.4
- Three generations of
imbeciles is enough,5 but apparently not — just to keep things in Chicago for the moment — for the Daley or Madigan families.
Even worse is the dishonest way that McGinnis hides the value judgments inherent in what he implicitly defines as "facts." Later in the piece, he declares
[E]ven if it is uncertain whether the death penalty deters crime, the relevant legal question raised by this fact is who should bear the risk of uncertainty. If it turns out the death penalty does not deter, some murderers will have been executed without the beneficial consequence of saving future lives. But if it turns out that it does deter, some innocent people will have been killed who would have otherwise been saved.
By focusing on only one of the five potential factors that purportedly justify the death penalty,6 McGinnis's criticism of Stevens's death-penalty jurisprudence earns, at best, a C-. Sometimes one factor in a multifactor analysis is dominant… but determining that is a matter of fact, and not doctrine, else the multifactor analysis would be itself different. <SARCASM> Then, too, I've seen no evidence that deterring individual conduct was a consideration in the original meaning of the Constitution, either its unamended text or the Eighth Amendment — not for lack of looking, and not because so far as I can determine a theory of deterring individual conduct was not explicated until over half a century after the Constitution was adopted (it's certainly non-Biblical, Old or New Testament). Maybe I didn't look in the right place, but that's a factual (and not rules-based or jurisprudence-based) evaluation. </SARCASM>
Ultimately, McGinnis's prose, reasoning, and attitude reflect an utter disdain for the stated, clear, overriding purpose of the Constitution. Both the Constitution as a whole and the system of judicial review embedded in Article III (and developed since) specifically contemplate that in the bowels of Christ, everyone must consider that they might be wrong. Including the Founders themselves, considering the amendment process built into it. And, to limit those errors, everyone must listen to others of differing viewpoints and factual experiences; in short, must not just tolerate dissent, but embrace it. Because that's how we learn: By listening to those who just might know something we don't, even if the rules they follow or jurisprudence they accept are different from ours, or even completely reject ours. Perhaps especially if different, because only in testing our ideas against others can we have or gain confidence in our ideas… except, that is, in a theocracy. I think the Establishment Clause sort of undermines that last. (Notice, though, that I didn't say we had to give their ideas equal standing; just that we have to listen. I would not grant the rules and jurisprudence of either Joe Stalin or Joe McCarthy equal standing — not even on an elementary school playground. Perhaps especially not there.)
Perhaps Mr McGinnis profoundly disagrees with Justice Stevens. That piece of writing isn't a book review; book reviews have to engage with the book more than the author (else reviews of Roscoe Pound7 would focus only on his antisemitism and wartime treason and never reach the text). Calling this piece of writing a "book review" is, at best, false advertising;8 it is, instead, a mere continuation of a longtime partisan attack.
And so, in the spirit of Galileo, I respond to this theocratic nonsense: "Stronzo, eppur si muove!" Which I have toned down considerably from what I'd ordinarily say, and not accompanied with the appropriate gestures, either.
- See Plato, The Republic (trans. Jowett 1888–1908). Unfortunately, this particular (free) edition (of a public-domain translation) does not lend itself to lawyerly pinpoint citation, instead requiring reading the whole thing. Which is rather my point, even if I prefer the Richards translation, which is not legally available on teh internets, to the Jowett for general and even scholarly use.
- John McGinnis, Stevens’ Jurisprudence of Facts Is No Substitute for One of Principle, Law and Liberty Blog (04 Jun 2019) (emphasis added). The irony of proclaiming doctrine as a foundation for "liberty" while rejecting attention to facts is left as an exercise for the student. The tenth-grade student who has taken a one-semester high-school course in world history or contemporary events can probably complete that exercise satisfactorily.
- Korematsu v. U.S., 323 U.S. 214 (1944), vacated by writ coram nobis, 584 F.Supp. 1406 (N.D. Cal. 1984) (vacating Korematsu's conviction on grounds of government misconduct, specifically lying about the factual basis for its policies); see Trump v. Hawaii, 138 S.Ct. 2392, 2423 (2018) (abrogating initial case as jurisprudentially wrong).
- Dred Scott v. Sandford, 60 U.S. 393 (1857).
- Buck v. Bell, 274 U.S. 200 (1927). Apparently, Justice Holmes was unable to follow his own previous advice that lawyers and judges, being trained only in the law, should avoid making factual judgments based only in that training in other areas. See Bleistein v. Donaldson Litho. Corp., 188 U.S. 239, 251–52 (1888). Application of this warning to Mr McGinnis's demand that everything be interpreted according to the "original meaning of the Constitution" is left to anyone who has actually pondered what "three-fifths of all other persons," Art. I, § 2, later removed, Amd. 14 § 2, means.
- Repeat after me, 1Ls: The factors justifying the purpose of a criminal sanction are to deter, to incapacitate, to impose retribution, to rehabilitate, and (noncanonically) to perpetuate existing social values and structural relationships.
- See, e.g., Roscoe Pound, The Cantos (c. 1915–1962).
- Cf., e.g., 15 U.S.C. § 45 et seq.; 815 ILCS 510/2.