The Supreme Court Again Upholds Your Right to Be Framed

By R.B. Parrish | May 4, 2012 | American Thinker

“A prosecutor … may receive absolute immunity from suit for acts violating the Constitution in order to advance important societal values.” -Elena Kagan, Solicitor General, 2009

After the Civil War, Congress passed several civil rights laws, including one allowing anyone whose said rights had been violated to sue those responsible, especially if these had been acting “under color of law” — that is, as part of law enforcement.

Naturally, judges, prosecutors, and police have hated that provision ever since, and the courts have done their best to bleed it of meaning.

In 2009, Elena Kagan, then-solicitor general, argued before the Supreme Court that prior to trial, a defendant has no right not to be framed, because false evidence does no real harm until it is actually used in court.

“Fabrication Of Evidence During An Investigation Does Not, By Itself, Violate The Constitution” read one of the subject headings of her brief.  And she quoted the opinion of a lower court:

“We do not see how the existence of a false police report, sitting in a drawer in a police station, by itself deprives a person of a right secured by the Constitution and laws.” (Pottawattamie vs. McGhee)

Justice was never so blind as this — but the Supremes, sitting as the very foundation of the legal establishment, didn’t bat an eye to object.  Indeed, one might have expected them to sing along in chorus.

It is the prosecutors, according to this point of view, who need to be protected — they are the ones in danger of being sued.  Hence, society’s primary interest must be in preserving their “courage and independence.”  (What prosecutor will pursue a case if he fears he will be sued afterward?)  And if this results in some innocent persons suffering and left without redress, that is just the price we have to pay “in order to advance important societal values” — that is, that same “courage” of our prosecutors.

This month, the Supremes (Rehberg v. Paulk, 9-0) have extended that concept: protection against suits is now affirmed not only for prosecutors, but also for witnesses…and even police officers when they testify.  And if those officers lie, it does not lessen the interest society has in preserving the principle (or establishing it anew) that pesky lawsuits must not be allowed to throw a beam into the spokes of justice.

Witnesses “might be reluctant to come forward to testify,” and even if a witness took the stand, the witness “might be inclined to shade his testimony in favor of the potential plaintiff” for “fear of subsequent liability.”

As for police officers:

If police officer witnesses were routinely forced to defend against claims based on their testimony, their “energy and attention would be diverted from the pressing duty of enforcing the criminal law.” 

Fair enough.  As well:

[A] police officer witness’ potential liability … could influence decisions on appeal and collateral relief[.]

So let the officers lie.  If it’s before trial, then no harm, no foul.

How does this play out in the real world?  The vast majority of criminal cases never go to trial at all; they are settled with plea bargains.

Read the full article here.

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Derrick Bell, Critical Race Theory Pioneer, Remains a Hero to His Students

By Joel B. Pollak | May 1, 2012 | Breitbart

Harvard Law School professor and Critical Race Theory pioneer Derrick Bell had radical ideas about the civil rights struggle and the Constitution, believing that white supremacy was so fundamental to our society that it would make racial equality almost impossible. To many of his colleagues, and especially to his most devoted students, however, Bell is fondly remembered as a caring and graceful mentor and father figure, as gentlemanly as he was radical.

Erin Edmonds, a member of the Harvard Law class of 1991, was a student of Bell’s who became his research assistant and co-author, ghost writing portions of, and editing, Faces From the Bottom of the Well: The Permanence of Racism, among other works.

The controversial book, which argued that black suppression holds American society together, was criticized at the time for defending Nation of Islam leader Louis Farrakhan. Edmonds’s classmate, Barack Obama, assigned the introduction to the book to his University of Chicago law students, along with Bell’s writings on the history of civil rights law.

Edmonds, who is an executive vice president of an in-house corporate legal department in her native Utah, spoke to Breitbart News about her experiences with Bell, who called her his “adopted daughter,” as well as about the origins and effects of Critical Race Theory.

Bell was not as conclusive in his views, she believes, as he is often portrayed to be. Rather, she says, “he was really rather tentative,” and came to his radical views by way of disappointment with real-world experiences.

It is important, Edmonds says, to remember the ways in which Bell’s experiences shaped his ideas:

Bell was hired by Thurgood Marshall [who argued Brown v. Board of Education before the Supreme Court and later became the Court’s first black Justice] when he [Bell] was a local NAACP executive in Philadelphia after graduating from law school. Marshall hired Bell to help with school desegregation cases in the South [to enforce the Brown decision]. It was dangerous, and it was segregated, and it was discouraging to encounter massive white southern resistance. Bell fought through these piecemeal litigative methods, and Iived through the aftermath, and I think he was just profoundly discouraged by the extent to which structural and institutional racism had not budged much. He was careful to point out that to say there had been no progress was ridiculous, but structural racism had not changed much for those who needed it most. After all, whom did the civil rights struggle really benefit most? Upper class and middle class blacks, and middle- and working-class white women. His worry was that he had left the needy behind, and so he tentatively put forward these theories as questions.

After demanding that Harvard hire black female legal scholar Regina Austin, leading a demonstration in April 1990 (where he was introduced by Obama), and taking unpaid leave from Harvard in protest, Bell returned to campus in the fall of 1990 to offer a non-credit seminar, “Civil Rights at the Crossroads.” He had taught it in previous years, and used it as a laboratory for ideas–including his controversial science fiction story, “The Space Traders,” in which white Americans trade their black countrymen to aliens.

The seminar, Edmonds recalls, included a spectrum of left and liberal students–and even some conservatives–from across the Harvard campus. “The Space Traders” was just the beginning:

He wanted to open up our minds away from strategies that had worked for their limited purpose. Far from being a victory lap [after his protest], that course was intended to snap us out of thinking in traditional ways that no longer worked for people like we: civil rights lawyers, poverty lawyers, even conservatives interested in fighting civil rights privately and less [through] state action.

His class was very effective. Through the use of storytelling, Bell captured the attention of people very quickly, and forced them into [using] a different part of their brains. The most powerful [story] was probably “Space Traders.” The universal reaction, even from conservatives, was that it was possible–not likely, or probable, but possible. That horrified us all. Bell, speaking to a rarified audience of mostly legal students who might well be his legatees, said there are intransigent elements of injustice that are left–and wanted this next generation to think about different ways of fighting that injustice.

Edmonds does not recall Obama attending that seminar, but notes that “Barack and Bell, as consummate intellectuals and diplomats who both welcomed dissent with their views, had an enormous amount of respect for one another,” though they did not mix socially. She describes Obama’s decision to introduce Bell at the protest as an example of the respect Obama enjoyed, and his diplomatic skill.

“Obama’s instinct to find common ground was apparent. And it wasn’t forced. I’ll be honest. There were some hardcore neoconservatives at Harvard Law School, and Barack handled them calmly. He listened to them–and there were times I was incensed and said, ‘How can you stand this?’–but he’s a consummate diplomat.”

Obama was in Edmonds’s law school “section,” a subdivision of students who take all of their first-year requirements together. In the annual moot court exercise, Edmonds was dismayed to draw Obama as an opponent– “of 550 people in that first-year class at Harvard Law School, there was exactly one person whom no one wanted to draw”–and she burst into tears.

“He’s very sensitive, and when he saw me, he put his arm around me and he started laughing. I said, ‘That’s not funny.’ And he said, “Erin, you yell back at professors–what are you afraid of?’”

She and her partner lost to Obama and his partner, she says, but at least the Obama team “didn’t wipe the floor with us.”

Besides the five full-year courses that all first year law students take, Edmonds and Obama were also together in at least two other classes–one on racial issues with Professor Randall L. Kennedy. (Edmonds says she believes Obama was also in her classes on corporate law and the law of terrorism, but she cannot be sure. Obama has not yet released his law school transcripts.)

Edmonds describes Kennedy as a protégé of Bell’s who had followed his own path.

Read the full article here.

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The Vetting – Exclusive: Obama Letter to Bell to Blurb ‘Dreams From My Father’

By Joel B. Pollak | April 26, 2012 | Breitbart

Barack Obama’s association with radical Critical Race Theory professor Derrick Bell did not end after Harvard Law School–and certainly not at the April 24, 1990 rally at which Obama embraced Bell, literally and figuratively. Breitbart News has discovered a letter sent by Obama to Bell in February 1995 in which Obama asks Bell to review–and to blurb–an early version of Obama’s autobiography, then entitled Dreams of My Father.

The letter is preserved in the archives of New York University, to which Bell donated his papers. The archives–which are open to the public–include Bell’s papers from decades of research, writing, teaching, and speaking. The website for the archives lists some of Bell’s notable correspondents, but omits Obama. Though the archives do not permit full publication without permission of the copyright holder, some excerpts can be provided.

The letter, dated February 3, 1995, is on a letterhead from Davis, Miner, Barnhill and Galland, the civil rights law firm that hired Obama. Over two pages, Obama brings Bell up to date on his career in Chicago, mentions that he is using Bell’s textbook with his own students, and asks him for help in reviewing, and promoting, Dreams:

Read the full Article here.

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Exclusive: Kagan’s Handwritten Notes to Bell on Critical Race Theory

By Joel B. Pollak | April 25, 2012 | Breitbart

Breitbart News has discovered previously unknown handwritten notes from Elena Kagan to radical professor Derrick Bell, sent to Bell as Kagan worked on his seminal 1985 article on Critical Race Theory in the Harvard Law Review (99 Harv. L. Rev. 4).

The notes, which were not among materials presented to the Senate during Justice Kagan’s confirmation hearings, are preserved among Bell’s papers at the New York University archives.

Kagan’s work on Bell’s article was revealed in 2010 by Harvard Law School professor Charles Ogletree, after President Barack Obama nominated her to the Supreme Court. Ogletree cited her “phenomenal edits” on Bell’s “classic” article.

Bell’s article, “The Civil Rights Chronicles,” combined exposition and fiction to argue that the Constitution was–and remains–tainted by white supremacy, and that the United States awaited “a common crisis that will overcome racism” through radical constitutional reform.

Unlike then-Harvard Law Review president Carol Steiker, who corresponded with Bell via typed letter (apparently on a 1980s-vintage dot matrix printer), Kagan chose to write to Bell exclusively on yellow notepad paper. She did not explain her choice to write by hand, save to suggest in one note on Aug. 30, 1985 that she was pressed for time.

Most of Kagan’s notes to Bell concern minor editorial comments on the “Chronicles,” as she and the other editors prepared his article for publication. One interesting passage concerns a legal question that Kagan and Steiker posed about Bell’s attempt to argue for a new constitutional right–a “substantive due process right” to “racial healing”:

As Carol and I told you on the phone, we’re a little bit concerned at the focus on this part of the piece. The doctrinal section centers on the idea of creating a substantive due process right to racial healing. But the reader is left wondering: why wouldn’t the Court strike these laws down on first amendment grounds? It strikes me that the Court would indeed strike these laws down on the ground of free speech or free association.

Read the full article here.

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By Dr. Timothy Daughtry | April 12, 2012 | Breitbart

You know it is campaign season when the left starts quoting the Bible, and the Obama campaign is in full Bible-thumping swing. Gone are the unguarded references to those bitter people who cling to their guns and religion. Instead, the stump speech is now adorned with references to being our brother’s keeper, and we are reminded that much is required of those to whom much is given. The Obama we see on the campaign trail sounds more like a preacher and less like a community organizer.

People familiar with orthodox Christian teaching — as opposed to liberation theology — will instantly note that the scriptures in question convey the exact opposite message from that which Obama intends. In the Christian worldview, caring for our neighbors and giving from what we have is a result of an inner conviction and conversion. Those actions represent submission to God, not to government. Consequently, charitable attitudes and actions are voluntary and not coerced. Jesus told the rich young man to sell his riches to give to the poor, not to redistribute what his neighbor has earned.

But the most interesting facet of Obama’s religious references is not his leftist interpretation of the message; it is the left’s sudden tolerance for mentioning scripture in public. Liberals who constantly warn the rest of us to keep our deepest religious values out of the voting booth seem strangely happy with the daily devotional coming from the White House. Where is the ACLU? Where are those who decry any public suggestion of a power higher than government as establishing a state religion? Though it is tempting to interpret their silence as yet another example of liberal double standards, it is more likely that the left sees Obama’s religious appeals as purely tactical, as less about saving souls and more about saving Obamacare. In that light, we can see Obama’s scriptural references as more in line with Alinsky’s classic Rules for Radicals than with orthodox Christianity.

Read the full article here.

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https://johnmalcolmdotme.wordpress.com/2012/04/13/2969/

Journalists’ Panel Discussion Shows Critical Race Theory Mainstream to Left

By Tony Lee | April 12, 2012 | Breitbart

On Monday, the Aspen Institute held a discussion about race and the 2012 elections, and its panel featured a roster of liberals.

Touré, one of the most prominent members of the media who has tried to exploit the Trayvon Martin tragedy to push his political agenda, Carlos Velez-Ibanez, a liberal professor of transborder studies, and José Antonio Vargas, a liberal ex-reporter and illegal immigrant who now is a prominent founder of an organization whose objective is to have a “conversation” about immigration, made up the panel, which FOX News’ Juan Williams, another liberal, moderated.

The panelists, in their comments and biases through which they saw America, revealed the wide reach of the legal discipline known as “Critical Race Theory,” which teaches students to see essentially all institutions in America as being the product of a white power structure that has to be systematically disassembled. Derrick Bell was the godfather of Critical Race Theory and, as Breitbart.com revealed, President Barack Obama was one of his many acolytes.

As the Trayvon Martin case begins to go to trial and the Supreme Court will soon hear arguments in immigration and affirmative action cases, the left will continue to use these events to attempt to start national dialogues on race. Of course, such dialogues will have subtle — and not-so-subtle — undertones that paint Republicans as intolerant and bigoted. And this will not be by accident, as the panel revealed, for even if those in the liberal media and intelligentsia did not formally take any classes on “Critical Race Theory,” they have been influenced by its tenets and have internalized them.

Exhibit A: Touré

Touré again tried to exploit the Martin case by saying it is about the “ability for us to exist as one America” because “we are very much two Americas, separate and unequal.”

“It is a scar on the American soul, an extraordinarily important moment in American history, and some people are not even recognizing that,” Touré continued. “We are angry this is happening and this is continuing to happen to our young boys.”

Touré said people ask him, “some black boy got killed in Florida and this is a major moment in American history?”

Touré answered that the Martin case is such a moment because it represents “the continued dehumanization of Trayvon and, by association, all black men.”

Speaking about white privilege, Touré said that he was frustrated with whites on the subject, noting that ones he spoke to kept telling him, “I don’t know what you are talking about — show it to me, or prove it to me.”

Touré, whether he knew it or not, was parroting a “Critical Race Theory” tenet that says an absence of specific examples of racism does nothing to disprove that America is a nation based on a power structure that perpetuates white privilege.

Touré then said other whites he spoke to claimed to have no power or privilege; he mockingly said their mindset was, “clearly it must not exist because I have nothing.”

Touré then noted that whenever blacks received rights in America, those rights were then creatively taken away. In the case of Jim Crow following emancipation, Touré was correct.

But Touré took it two steps further.

He referenced an academic hypothesis that after the civil rights bills of the 1950s and 1960s were passed, America tried to restore Jim Crow through other, more creative means by purposely incarcerating blacks. Touré then said that the rise of Obama will lead to another period where rights will be in danger for minorities.

Touré cited the “rise of voter ID laws” as an example of minority rights being in danger, even though voter ID laws are colorblind. He then said that the recent tragedy in Tulsa, Oklahoma — in which gunmen who individually were prejudiced shot and killed five blacks — was proof of whites being angry at blacks in general.

Read the full article here.

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Obama Thinks America as Founded is Unfair

Rush Limbaugh | April 10, 2012 | RushLimbaugh.com

BEGIN TRANSCRIPT

RUSH: Let me tell you what’s going on. I mentioned this in the third hour of the program, but I want to mention it again just as an overall explanation of Obama and Obamaism. For the past couple of years max, maybe past year and a half, Obama… And he started this at a speech in Osawatomie, Kansas, on an anniversary of a speech given at the same place by Winston Churchill.

And he went out in that speech and basically said that the nation, as founded, had never worked; that this “you’re on your own” economy has never worked. And, by that, he means capitalism. By that, he means rugged individualism, self-reliance. That’s never worked. Obama’s point, ladies and gentlemen, is that the founding of the country was unjust and immoral economically, that it was set up by the equivalent (in those days) of today’s 1%: a bunch of really exclusive, elite, wealthy, old white guys. And they set up this country so as to ensure their own wealth and prosperity while denying opportunities to others. And the way they did it was with this social Darwinism. This “you’re on your own.” They knew that the vast majority of people couldn’t take care of themselves. They knew…

This is Obama’s thinking now. He’s never said this, but I’m telling you this is what’s the foundation for his current campaign strategy at the root of his speeches. So it’s never worked, by design, ’cause the founders are smart enough to know that the vast majority of people are not capable of fending for themselves. And they purposely set up a system where those people would suffer. And that’s what happened! That’s what Obama’s trying to say: “It’s never worked. This country has never worked. Capitalism, this ‘you’re on your own’ business has never worked, and it’s all coming to a head now. It’s finally showing itself as the recent failure it is now.”

Read the full article here.

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Obama is Losing His War on the Supreme Court, But Winning His Wars on Women & the Economy

Rush Limbaugh | April 09, 2012 | RushLimbaugh.com

BEGIN TRANSCRIPT

RUSH: There’s a new Rasmussen poll out.  The Supreme Court’s approval rating. (laughing) No, I kid you not.  The Supreme Court’s approval rating has skyrocketed since taking up Obamacare, since the oral arguments. Forty-one percent of likely voters now rate the Supreme Court’s performance as good or excellent.  It’s up 13 points.  It’s up 13 points since mid-March, where it was 28%. (interruption) Well, I don’t know what they’re gonna do about it, but it’s back to the drawing board for Obama and Axelrod.  I mean, the court’s approval numbers are… I don’t care who you are; you like it when your approval numbers are on the upswing.  You just do.  I mean, whether you’re a justice, whether you’re a judge.

BREAK TRANSCRIPT

RUSH: The Supreme Court, approval numbers up to 41% now of likely voters, even though nobody will ever vote on them.  It’s a Rasmussen poll, but the fact of the matter, the numbers are going up, and dramatically.  Thirteen points after the oral arguments.  Now, the White House is gonna look at this, it cannot make them happy.  Obama has been trying to make people despise the court, distrust the court.  It’s like everything else in reality that’s happening to Obama, it’s going in the wrong direction.  Like they’re trying to manufacture, for example, this phony Republican war on women, and now they’re out trying to say that Romney is forever tainted by this and cannot overcome it.

Now, the fact of the matter remains, the stock market today is down anywhere from 139 to 150 points, and most of the analysts that we trust on this program are saying that it is a delayed reaction to the lousy job news on Friday.  “US stocks sank in opening trade Monday, reacting for the first time to disappointing job market data released Friday when the markets were closed.  In the first five minutes of trade, the Dow Jones Industrial Average dived 137.51 points (1.05 percent) to 12,922.63.” And what is it now?  12,929.  Down 131 points now, and it’s been in that range.  And this is prompting a lot of people — (interruption) No, that’s right.  They’re losing their war on the Supreme Court, Snerdley, is what it means.  You know, I settle something. I solve it. I explain it. And Snerdley keeps asking me in the IFB.  No, it means that they have lost their war on the Supreme Court.  But they think they’re winning their war on the economy.

The war on the economy is to make people think that 8.2% unemployment is equal to 5% unemployment.  That five-dollar-a-gallon gasoline is the same as three dollars.  They’re trying to redefine the economy now, what we have now as the new normal.  This is it.  And, folks, we can’t allow that to happen.  It simply isn’t true.  This country is much better than what is happening now.  The media and the Democrats are continuing this mythical Republican war on women as though out of the blue the Republicans decided to take away birth control pills from women.  All of this was started on January 7th with a question from George Stephanopoulos to Mitt Romney in a Republican primary debate asking him if states should be able to ban contraception, birth control pills. Romney said, “I don’t know what you’re talking about.  Nobody’s thinking about this.”  But all it took was the question be asked, therefore the subject has been introduced by the Republicans, since Romney answered the question.  Santorum answered it last fall.  And so they’re off to the races on this now.

Read the full article here.

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Obama to the Court: I’m Following FDR’s Playbook

By Ron Radosh | April 4, 2012 | PJ Media

Many have commented on President Barack Obama’s remarks on the Supreme Court this week, when he stated “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress,” referring to the passage of the unpopular ObamaCare, and the chance that in June, the Supreme Court will rule it unconstitutional.

The Wall Street Journal ‘s editors took on the president’s claim that a negative Court ruling would be “unprecedented”:

Presidents are paid to be confident about their own laws, but what’s up with that “unprecedented”? In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a “democratically elected” legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by “strong” majorities.

The so-called Affordable Care Act, moreover, was not passed with any kind of a strong majority. Democrats pushed it through the Senate on a purely partisan vote, attaining only a drop more than the 60 needed to prevent a filibuster. And in the House the vote was 219-212, despite a Democratic majority.

Now, Obama is too smart to not know about Marbury v Madison. As a graduate of Harvard Law School and later a “senior lecturer” at the University of Chicago, he obviously knew this case very well. Indeed, most students whose high schools still have history or civics have heard about it way before college.

So if we accept that the president was not ignorant of basic constitutional law and the concept of separation of powers, then we have to come up with other theories to try to explain why he made this statement.

The most obvious is that he was both trying to inflame his base before the election and to threaten the Supreme Court justices in advance, especially Judge Anthony Kennedy, the supposed swing vote who many think might side with the liberal justices. The president also said the following while making his remarks:

Read the full article here.

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What’s Obama Thinking? Wickard, not Marbury

By Neo-Neocon | April 6, 2012 | PJ Media

When he talks precedence, he means the astounding 1942 case.

Obama’s remarks about the Supreme Court and ObamaCare have been criticized by conservative pundits as intemperate, inflammatory, and ignorant. What was he thinking when he said the Court would be taking an “unprecedented, extraordinary step” if it overturned a law duly passed by Congress? How could a constitutional law professor not have heard of Marbury v. Madison, which long ago established that the Court may do exactly that?

When Obama attempted damage control the next day, his remarks provided a clue as to what he might have been thinking in terms of precedent — and it wasn’t Marbury v. Madison:

[L]et me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre-New Deal.

[T]he Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this. … I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.

In the late 1930s, Franklin Delano Roosevelt was proposing — and the Democratic Congress under him was passing — laws that would have required the Court to allow the federal government power to regulate interstate commerce far beyond any that had been granted before in this country. The resulting fight within the Court was similar to the battle today: textualists and originalists on the conservative side; proponents of a living Constitution almost infinitely malleable on the liberal side.

FDR first tried to retaliate against the conservative justices by packing the Court. That attempt failed, but his intimidation nevertheless managed to transforms the Court into an instrument far more in line with his wishes. The shift had an especially profound effect on the judicial review of legislative actions that affect commerce:

Prior to the New Deal the judiciary was seen as guardian of the Constitution, ensuring that government activities of all kinds squared with the principles of the federal charter. Following the New Deal era, the judiciary’s function changed to one of “bifurcated review,” allowing great deference to the political branches in regulating economic matters and applying heightened scrutiny to government encroachments on civil liberties. [emphasis added]

It didn’t hurt, either, that during his extended tenure as president Roosevelt ultimately appointed eight of its nine justices, affecting the Court’s tenor long past his service and solidifying the extreme liberalizing trend.

How liberal and how extreme? Although Charles Dickens had his Oliver Twist character Mr. Bumble famously declare the law to be “a ass,” most people may not realize just how big an ass the law can be until they study the 1942 Supreme Court ruling Wickard v. Filburn.

Read the full article here.

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What Left-Wing Law Professors Really Think About You, and the Role of Lawyers

By Hans Bader | April 3, 2012 | OpenMarket.org

You’re just a lab rat to be socially re-engineered by activist judges and lawyers — who think they know how to run your life better than you do — or a chump to be fleeced for lawyers’ enrichment. That’s the message some law professors apparently instill in students at Howard University: “At Howard, they tell us as soon as we get there, ‘If you’re going to be a lawyer, you’re either a social engineer or a parasite on society,’” a student at Howard declared. “That’s how I think about life, is to be a social engineer.” (Although Howard University is nominally “private” and thus not accountable to taxpayers, it is directly “funded by the U.S. Government, which gives approximately $235 million annually” to it in special appropriations.)

Promoting social engineering by lawyers (through “institutional-reform” lawsuits brought by left-wing lawyers and law-school clinics) is a bad idea. Left-wing law professors are a bossy lot: some want to ban conservative or politically-incorrect speech as “hostile-environment harassment,” control what you eat and drink, control your sex life (they view heterosexual sex as patriarchal and thus “consensual rape”), raise your taxes through state-court decrees ordering increased funding of government programs, and take away your property (and your children, if you home-school them).  They also often lack common sense, or a grasp of certain basic realities of life. One of my professors at Harvard Law School was notorious among his colleagues for behaving as if on drugs. Another of my professors, the radical Duncan Kennedy, who was so prominent and respected among law professors that he was called the “Pope” of the “Critical Legal Studies” movement, advocated rotating the law professors and the janitors into each others’ jobs. (The janitors liked the idea of being paid like law professors, but had no interest in teaching law, and thought Kennedy’s idea was flaky. Kennedy himself was married to a wealthy heiress, and did not need a law professor’s handsome salary to live on. America would be better off being run by Harvard Law School’s modest, hard-working janitors than by its mostly left-wing law professors.)

Read the full article here.

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Critical Race Theory: Of The Racists, By The Racists, And For The Racists

By Cardinal Lawyer | April 2, 2012 | Breitbart

Picture this: you are the president of a major law school. A visiting professor, assigned to teach an introductory law class, ignores the curriculum and instead usurps the class time to espouse a radical race theory he has recently developed.

First-year law students, mandatorily assigned to the class, stop attending the class, moonlighting instead at other sections of the same course being taught by other professors.

As an administrator, what do you do? To reasonable people, the course of action is obvious–you simply tell the visiting professor to stop it, and to stick to the curriculum.

But you don’t do that. Why not?

The answer is obvious, but complex: because you know you will be called a “racist” by activists, and you will do anything to avoid that. So you try to tiptoe around the problem, and you make it worse.

That’s one legacy of racialist Derrick Bell, when he was invited to teach at the home of political correctness, Stanford Law School, in the 1980’s.

The success of radical leftists in taking over administrative control of various institutions–the media, higher education and public worker unions–was partly based upon their tactic of accusing their opponents of being racist.

The truth is, it worked very well for a long time, and often still does. Human nature is to give in to avoid being called racist; it’s just not worth it for ordinary people doing everyday jobs–they didn’t sign up for that kind of harassment. The left knows it, and exploits it.

That partly explains how the left has used an intimidating culture of fear to turn institutions into bowls of milquetoast. It’s a decades-old legacy of ordinary people backing down again and again, giving in to the radical Left.

In the universities, the Marxist/collectivists didn’t call themselves “communists” or “socialists;” they used the brand name of “Critical Studies.”

Buried in Derrick Bell’s resume is an instructive episode showing how the racial intimidation of the “Critical Studies” race baiters helped move the Leftist’s agenda.

Bell–who died last year–objected to neutrality and color-blindness in the Constitution. Bell wanted race to become a permanent weapon of the left–in short, he was a race warrior and wanted constant racial strife.

To justify his race war, he argued that the existence of slavery at the time of the U.S. Constitution rendered that agreement unenforceable against blacks. He reasoned that the Constitution was fatally illegitimate, and could never be fixed–not by the Civil War or the resulting anti-slavery amendments, nor by the Civil Rights amendments. To Bell, the Constitution was merely a tool to keep the black race down–permanently. It was government of the racists, by the racists and for the racists.

And because it’s illegitimate, it does not have to be obeyed. That’s the intellectual justification. Got it?

Read the full article here.

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Law School Humbug

Heather Mac Donald | Autumn 1995 | City Journal

Law schools across the country have taken on a new function: cleansing students’ souls. The taint to be extirpated, of course, is racism and sexism, and in many classes the sometimes dramatic measures needed to root out such blights have driven away the more mundane task of teaching legal analysis. “I was going home crying every day,” says Linda P., a law student at New York University. The source of her unhappiness was her “Race and Legal Scholarship” course. “No matter what I said, the response was: you don’t know because you’re white. Some students wouldn’t speak to me after class. It scared me, because I thought I was this big liberal, and I was treated like the devil.”

Linda’s professor, Paulette Caldwell, practices the hottest form of legal scholarship today: critical race theory. While therapeutic courses such as Caldwell’s remain a small portion of the curriculum at most law schools, the theory behind them has nevertheless shaken up the legal academy. Only ” feminist jurisprudence” rivals critical race theory in influence and sheer sex appeal; both fashions are cut from the same cloth.

The impact of critical race theory and feminist jurisprudence doesn’t stop at the ivy-clad walls of the legal academy. Feminist jurisprudence has revolutionized the law of sex discrimination and rape. Courts across the country, persuaded that legal practice is deeply racist and sexist, are conducting costly studies of their own alleged biases. Both movements are trying to limit First Amendment guarantees in order to protect female and minority sensibilities; their first success, beyond campus speech codes, has been in the workplace. These repercussions are all the more remarkable when you consider that critical race theory and feminist jurisprudence are fundamentally antithetical to the very notion of law.

Back in the law school classroom, Linda P. is not the only student crying these days. Law professors in many schools boast that their courses have reduced students to tears, sent them fleeing to the dean, and created crosscurrents of hostility in the classroom—proof that the professors are ” touching a nerve.” Frances Lee Ashley, a University of Tennessee law professor, faced numerous charges from students that her “Discrimination and the Law” class was simply a forum for white-bashing, that she favored black students, and that the class exacerbated racial tensions. Ashley was unrepentant. “If teachers intend to open this scary space,” she writes in the California Law Review, “they need to be ready to make it reasonably safe and bearable for all members of the enterprise. . . . As a teacher in a predominantly white but desegregating institution . . . you [cannot] consistently do the right thing if by that you mean behavior that allows the average white student to avoid any feeling of being personally accused or defensive when matters of race are discussed.”

Charles Jones, a professor at Rutgers-Newark Law School, asks students in his critical race theory seminar to write an essay about race relations, challenging, among other things, “the assumption that blacks, Jews, and Latinos are allies.” When a black student wrote about her indelible dislike of white people, Jones knew he had struck gold. He asked the student to read her essay aloud in class; an Italian-American woman burst into tears and fled the room. Fortunately, critical race teachers are prepared for such disruptions. “Getting in touch with your feelings is difficult,” explains Jones. “We let [the Italian-American woman] experience out her grief. She sat out a class or two, and when she came back, she wouldn’t talk.” It was a useful lesson, Jones concludes: “She was naive to think there’s not a lot of cross-racial hatred.” (However open-minded critical race teachers may be about “cross-racial hatred,” it is difficult to imagine this story coming out as it did had a white student written of his dislike for blacks.)

The core claim of both critical race theory and feminist jurisprudence is that law is merely a mask for white male power relations. Law, in other words, is indistinguishable from politics; the purported objectivity and neutrality of legal reasoning is a sham.

However crude the multicultural trappings of these theories, their fundamental argument has a respectable pedigree. For over a century, American legal scholars have challenged the traditional distinction between legislative and judicial action. According to the traditional view, legislators make the law; judges merely apply it. Judicial decisions, this tradition holds, are determined by preexisting legal rules, not by the judge’s own whims.

The stakes riding on the accuracy of this conception are enormous. For if rules do not in fact determine the outcome of cases, if judges inevitably enjoy such enormous interpretive discretion that they are virtually creating law as they go along, then the legitimacy not just of the judiciary but of governmental power itself is thrown into doubt.

The first American thinker to question the conventional understanding of law was also America’s greatest legal scholar: Justice Oliver Wendell Holmes, whose ideas foreshadowed virtually all of twentieth-century American jurisprudence. Holmes was reacting against the late-nineteenth-century view of law as a fixed system of unchanging, quasi-Platonic principles.

Bunk! replied Holmes; “law is no brooding omnipresence in the sky.” To equate it with a set of timeless legal principles ignores the fact that judges have always transformed the law in accord with changing opinions and social conditions. In fact, argued Holmes, there are no legal principles in any meaningful sense. Law is simply a prediction of “where the axe of the state will fall.”

By the twenties and thirties, Holmes’s skepticism about legal rules had expanded into one of the most powerful movements in American legal scholarship. The “Legal Realists” developed detailed exposés of the malleability of legal reasoning in every kind of judicial decision making. Since precedent can always be found on either side of a case, they claimed, judicial decision making and even fact-finding are often determined by unconscious, irrational factors or by the judge’s political and economic beliefs. Legal rules, in other words, don’t determine outcomes; judges do.

Men of letters as well as the law, the Legal Realists produced a witty and urbane corpus of work—unlike that of the current crop of legal critics. The Realists argued that law should rest on a rational basis, such as the emerging discipline of social science, not on abstractions. Accordingly, they urged judges to sweep away archaic common-law rules that no longer made sense.  Their criticisms were unimpeachable—many of the traditional distinctions determining when someone was liable for an injury, for example, were wholly artificial. But the skeptical judicial housecleaner often turns into the sorcerer’s apprentice. “Gradually, every limitation [on legal liability] begins to seem arbitrary,” warns Philip E. Johnson, a law professor at the University of California at Berkeley. Once a precedent has been established for ignoring existing case law, decisions that follow the law require justification just as much as decisions that depart from it, says Johnson.

Legal Realism lost much of its glamour after World War II. But in the 1970s, leftist law professors dusted off the Realists’ critique and dressed it up in German and French literary and critical theories. Their favorite phrase to describe their work—”trashing”—reflects their nostalgia for the anti- establishment 1960s. The result of their efforts was Critical Legal Studies (CLS), a diverse, sometimes impenetrable mix of Marxist analysis, postmodern literary criticism, and American legal skepticism. CLS dominated the academic left for well over a decade, gaining widespread media attention in the 1980s for tearing up Harvard Law School. (Concurrently, “Law and Economics”—equally iconoclastic—moved in from the right, creating, together with CLS, a pincer offensive on traditional jurisprudence.)

Like many of the Realists, the Crits (as CLS practitioners called themselves) argued that law is just politics wearing robes. But the Crits’ real gripe was not with law but with liberal society. They berated liberalism’s emphasis on individual freedom and limited state power. Many called for a world without distinct public and private spheres, in which the individual would not be “alienated” from the collectivity. The Crits were particularly scornful of “illegitimate hierarchies,” a phrase that included every possible type of ranking or distinction among individuals. Harvard’s Duncan Kennedy, the original bad boy of CLS, infamously called for breaking down law school hierarchies by rotating all law school jobs from dean to janitor on a regular basis and paying all employees the same salary.

According to the Crits, the real purpose of law is to make an oppressive capitalist system appear inevitable. Law does this by duping people into believing that the rules that govern the distribution of property, the performance of obligations, and the relation between the state and civil society are “natural” and necessary. We forget, say the Crits, that law is man-made and could as easily be constructed quite differently—property need not be private, for example; or an employer could have no right to control his employees’ behavior; or responsibility for deviant behavior could be assigned not to the individual but to social forces.

Unlike the Realists, the Crits seldom ventured into the practical world of law reform, preferring instead to generate anti-bourgeois theory in academic comfort. To the extent they did make practical proposals, these consisted of familiar Old Left prescriptions: public ownership of banks and insurance companies, rent control, union control of business, and vigorous housing-code enforcement.

Read the full article here.

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Why There is a Culture War: Gramsci and Tocqueville in America

By John Fonte | December 1, 2000 | Orthodoxy Today

John Fonte examines the philosophical antecedents of the culture war to show why the culture war takes the shape that is has. He reveals why a constant vigilance towards the permanent things that breathe life into the culture is necessary. The essay runs about fifteen printed pages but the time spent reading it will prove worthwhile.

As intellectual historians have often had occasion to observe, there are times in a nation’s history when certain ideas are just “in the air.” Admittedly, this point seems to fizzle when applied to our particular historical moment. On the surface of American politics, as many have had cause to mention, it appears that the main trends predicted over a decade ago in Francis Fukuyama’s “The End of History?” have come to pass — that ideological (if not partisan) strife has been muted; that there is a general consensus about the most important questions of the day (capitalism, not socialism; democracy, not authoritarianism); and that the contemporary controversies that do exist, while occasionally momentous, are essentially mundane, concerned with practical problem-solving (whether it is better to count ballots by hand or by machine) rather than with great principles.

And yet, I would argue, all that is true only on the surface. For simultaneously in the United States of the past few decades, recurring philosophical concepts have not only remained “in the air,” but have proved influential, at times decisive, in cultural and legal and moral arguments about the most important questions facing the nation. Indeed: Prosaic appearances to the contrary, beneath the surface of American politics an intense ideological struggle is being waged between two competing worldviews. I will call these “Gramscian” and “Tocquevillian” after the intellectuals who authored the warring ideas — the twentieth-century Italian thinker Antonio Gramsci, and, of course, the nineteenth-century French intellectual Alexis de Tocqueville. The stakes in the battle between the intellectual heirs of these two men are no less than what kind of country the United States will be in decades to come.

Refining class warfare

We’ll begin with an overview of the thought of Antonio Gramsci (1891-1937), a Marxist intellectual and politician. Despite his enormous influence on today’s politics, he remains far less well-known to most Americans than does Tocqueville.

Gramsci’s main legacy arises through his departures from orthodox Marxism. Like Marx, he argued that all societies in human history have been divided into two basic groups: the privileged and the marginalized, the oppressor and the oppressed, the dominant and the subordinate. Gramsci expanded Marx’s ranks of the “oppressed” into categories that still endure. As he wrote in his famous Prison Notebooks, “The marginalized groups of history include not only the economically oppressed, but also women, racial minorities and many ‘criminals.'” What Marx and his orthodox followers described as “the people,” Gramsci describes as an “ensemble” of subordinate groups and classes in every society that has ever existed until now. This collection of oppressed and marginalized groups — “the people” — lack unity and, often, even consciousness of their own oppression. To reverse the correlation of power from the privileged to the “marginalized,” then, was Gramsci’s declared goal.

Power, in Gramsci’s observation, is exercised by privileged groups or classes in two ways: through domination, force, or coercion; and through something called “hegemony,” which means the ideological supremacy of a system of values that supports the class or group interests of the predominant classes or groups. Subordinate groups, he argued, are influenced to internalize the value systems and world views of the privileged groups and, thus, to consent to their own marginalization.

Far from being content with a mere uprising, therefore, Gramsci believed that it was necessary first to delegitimize the dominant belief systems of the predominant groups and to create a “counter-hegemony” (i.e., a new system of values for the subordinate groups) before the marginalized could be empowered. Moreover, because hegemonic values permeate all spheres of civil society — schools, churches, the media, voluntary associations — civil society itself, he argued, is the great battleground in the struggle for hegemony, the “war of position.” From this point, too, followed a corollary for which Gramsci should be known (and which is echoed in the feminist slogan) — that all life is “political.” Thus, private life, the work place, religion, philosophy, art, and literature, and civil society, in general, are contested battlegrounds in the struggle to achieve societal transformation.

It is perhaps here that one sees Gramsci’s most important reexamination of Marx’s thought. Classical Marxists implied that a revolutionary consciousness would simply develop from the objective (and oppressive) material conditions of working class life. Gramsci disagreed, noting that “there have always been exploiters and exploited” — but very few revolutions per se. In his analysis, this was because subordinate groups usually lack the “clear theoretical consciousness” necessary to convert the “structure of repression into one of rebellion and social reconstruction.” Revolutionary “consciousness” is crucial. Unfortunately, the subordinate groups possess “false consciousness,” that is to say, they accept the conventional assumptions and values of the dominant groups, as “legitimate.” But real change, he continued to believe, can only come about through the transformation of consciousness.

Just as Gramsci’s analysis of consciousness is more nuanced than Marx’s, so too is his understanding of the role of intellectuals in that process. Marx had argued that for revolutionary social transformation to be successful, the world views of the predominant groups must first be unmasked as instruments of domination. In classical Marxism, this crucial task of demystifying and delegitimizing the ideological hegemony of the dominant groups is performed by intellectuals. Gramsci, more subtly, distinguishes between two types of intellectuals: “traditional” and “organic.” What subordinate groups need, Gramsci maintains, are their own “organic intellectuals.” However, the defection of “traditional” intellectuals from the dominant groups to the subordinate groups, he held, is also important, because traditional intellectuals who have “changed sides” are well positioned within established institutions.

The metaphysics, or lack thereof, behind this Gramscian worldview are familiar enough. Gramsci describes his position as “absolute historicism,” meaning that morals, values, truths, standards and human nature itself are products of different historical epochs. There are no absolute moral standards that are universally true for all human beings outside of a particular historical context; rather, morality is “socially constructed.”

Historically, Antonio Gramsci’s thought shares features with other writers who are classified as “Hegelian Marxists” — the Hungarian Marxist Georg Lukacs, the German thinker Karl Korsch, and members of the “Frankfurt School” (e.g., Theodor Adorno and Herbert Marcuse), a group of theorists associated with the Institute for Social Research founded in Frankfurt, Germany in the 1920s, some of whom attempted to synthesize the thinking of Marx and Freud. All emphasized that the decisive struggle to overthrow the bourgeois regime (that is, middle-class liberal democracy) would be fought out at the level of consciousness. That is, the old order had to be rejected by its citizens intellectually and morally before any real transfer of power to the subordinate groups could be achieved.

Read the full article here.

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The Ryan Test: Demagoguery Versus Ideas

August 12, 2012 By John Malcolm Leave a Comment

By Jonathan S. Tobin | August 11, 2012 | Commentary Magazine As John wrote earlier today, liberals are convinced that Mitt Romney’s choice of Paul Ryan to be his running mate offers them a golden opportunity to savage the Republicans about the Wisconsin congressman’s budget plans. Predictably, the New York Times delivered one of the first such salvos in its editorial posted […]

Smoking Obama’s Crack and Yearning for the Mud

August 12, 2012 By John Malcolm Leave a Comment

By Vanderleun | August 10, 2012 | American Digest [From 2008. Only the names have been changed because the target has changed.] This downward flight of intellectuals has been going on ever since the Romantic movement began its counter-revolution a couple hundred years ago. No matter how much they flap their lips it’s a fall, not […]