NY Times Book Review had a noteworthy review by Laurence Tribe of Larry Kramer’s new book.
Kramer is now Dean of the Stanford Law School. (The previous two or three Deans have been Constitutional Law Scholars too. I wonder if that is a job requirement.) The review was remarkable in a number of ways. The most important, I think, assuming that it accurately reports Kramer’s theory (an heroic assumption, I know) is that the Dean of Stanford Law School does not believe in rule of law. Here is a key section of the review:
“And when Kramer explains how he would have the people ''take back'' their constitutional birthright, it's not surprising that he views wistfully ''outright defiance'' of the court's contentious decisions, ''like those on abortion and school prayer.'' With such praise from a law school dean for what can only be labeled lawless conduct, it seems anticlimactic when Kramer rounds out his platform by urging those who disagree with the court's rulings to consider starving it of the money it needs to function; stripping it of jurisdiction over sensitive topics; shrinking its size or packing it with new members (as Franklin Roosevelt tried to do in the mid-1930's); and, yes, even impeaching justices whose opinions incur popular disapproval.”
What this seems to me to mean is that the decisions of the courts, of whatever level, have force only for those directly before it in the case at hand. That is not much of a role for courts, and surely makes pointless their inclusion in the Constitution. In fact, it makes the existence of any system beyond voluntary arbitration a bit of a waste. One could talk about the civil rights decisions, but what would be the point. People who believe that court decisions are tyranny and that the people are and should be free to ignore the courts or strip the courts of decision-making power are not going to be moved by examples. But for myself, I find the positions described in the review to be inconsistent with the oaths members of the federal bar swear. I cannot see that anyone with these sorts of views – again assuming that the review reports accurately – can be called ‘progressive’ with a straight face. It is a kind of progressive one finds in the Progressive Labor Party.
I found Tribe’s review far more interesting than the review of Himmelfarb. No one could seriously believe that the English Enlightenment is less well-known and less studied than the French. I doubt one could get through a philosophy program in the U.S. without study of the English Enlightenment figures (at least if they include the Scottish Enlightenment and the British Utilitarians). It would be easy to miss the French figures entirely – Voltaire, Diderot, even Rousseau may not be part of the curriculum. So much the worse for the curriculum, one might say. I suppose so. But there are closer connections between Rousseau and Hume or Hutcheson than between Hume and Bentham or Mill.
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