On ‘Legal Crits’

April 6, 2012 By

The scene-stealer in last week’s Supreme Court hearings on Obamacare has been how the folks who fashioned the White House’s legal arguments (and their chums) were totally gobsmacked by the Court’s questions on the constitutionality of the individual mandate.  After watching a parade of obviously literate people with a ‘Martians are landing’ look on their faces, perhaps you wondered how they could have been so wrong.  The answer: they’ve all ‘legal crits’.

An explanation: ‘legal crits’ are not an LA gang sporting highly-polished tasseled loafers.  Rather, they’re lawyers who view the Constitution as no more than a political document, fashioned by dead white rich males to preserve their power over the lower classes.

At our elite law schools the ‘legal crits’ hold sway.  In graduate school, I roomed with several Harvard Law students and I saw first-hand how they coped with the legal crit environment.  For most seeking a high-paid career in business law, muddling through one’s crit courses was simply an added price to the cost of law school.  One friend, fluent in Japanese, kept his head down and avoided the crits by specializing in Japanese legal studies.  But for those intending to enter public service or the public policy arena, there was no escape.

The result is an influential group of legal scholars and commenters who see the Constitution as a sort of perpetual wedding gown – that can be infinitely tailored and embellished to suit the tastes of the day.  Hence their gobsmacked looks when they discovered there was another viewpoint entirely.

Obviously, the alternative view regards the Constitution as legitimate, but there’s more to it than that.

This view (sometimes called ‘Public Choice’) involves separating constitution-making from ordinary law-making.  Constitution makers operate under a ‘veil of uncertainty’ – they must consider the unknown very long-term future (as opposed to typical legislators who deal with shorter-term problems).

According to Public Choice theory, this uncertainty drives the framers to look beyond their own immediate self-interest.  After all, Framer John has no way of knowing if his descendants will be rich or poor, clever or stupid, so he is more inclined to accept a framework that would be advantageous to a wider group of people.

This is exactly opposite of the legal crits’ stance.  In the legal crit world, the Constitution springs from class oppression.

As a practical matter, the crits saw health care as a social justice problem that needed to be fixed, and the Constitution could not stand in the way of ‘progress’.  Now imagine endless meetings in government conference rooms packed with lawyers who all believed in this.  And when the lawyers left those meetings, they talked to their pals (law professors, media types), who also all believed in this.

This constant reinforcement begat overconfidence, which, as we saw last week, crashed when confronted by justices who actually think the Constitution was designed, and continues to do good stuff.  Stuff such as setting boundaries over which the federal government cannot cross, no matter how well-intentioned its purpose.

How will the Supreme Court rule in June on Obamacare?  Who knows?  But one immediate by-product of these court challenges has been to reveal to the American public just how blindly the Left has embraced the legal crits’ intrinsically negative view of the Constitution.  For that we should be grateful indeed.

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    Joanne Butler of Wilmington is a graduate of the Kennedy School of Government at Harvard University and a former professional staff member of the Ways and Means Committee of the U.S. House of Representatives.

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