CONCLUSION
PROPOSALS MODEST AND OTHERWISE
If we desire respect for the law, we must first make the law respectable.
Louis Brandeis (1912)1
Read quickly, there’s nothing special about Louis Brandeis’s words; a platitude with pleasing rhythmic balance, ready to be filed in Bartlett’s and forgotten. Read slowly, Brandeis’s words bloom into remarkable subversiveness. In the first clause, Brandeis suggests that the law should seek respect, implying that law is not respectable simply by virtue of being The Law. In the second clause, he suggests that to gain respect, law must “first make” itself respectable; the unavoidable implication, then, was Brandeis thought that law was not respectable—not yet. That’s a remarkable sentiment from a man who was a natural contender for a seat on a prestigious court. Today, few in Brandeis’s position would dare to be so bold, and in a sad twist, they have Brandeis to thank. Brandeis was a man of deep conviction, and an outspoken progressive (he pioneered the right to privacy on which so many of our present freedoms depend). When Woodrow Wilson nominated Brandeis to the Supreme Court, the Senate subjected him to the first public confirmation hearing for that position (over which hovered more than a whiff of anti-Semitism). Confirmation hearings should have been public all along, of course, but they became public for the wrong reasons—to drag Brandeis over the coals for daring to call a turd a turd. Law is not respectable, but it’s not respectable to say as much.
The public has greater freedom of expression, and they see turds aplenty, if polls are any guide. Congress is a sour joke, widely loathed. Partisan preference plays a role, but citizens also sense that legislators cannot do their jobs. Simply passing a budget, much less on time, is often beyond Congress, and the tussles over the 2017 tax cut made abundantly clear that Congress operates by procedural shenanigans and the dismal expedient of not bothering to read the laws it passes. The federal bureaucracy, long an object of skepticism by the Right, now occasions unease among principled citizens of all political affiliations. Trump’s ham-fisted lieutenants, marinating in corruption and incompetence, have made plain that fears about bureaucratic governance—its unaccountability, instability, and arbitrary process—were not fever dreams of Constitutional purists, but dangers waiting to be realized. While the judiciary retains public respect, its grandest court has seen net approval drift to zero. Worse, a growing plurality of Americans believes the justice system is not fair, and as the questions get more specific, distrust rises. Asked whether the justice system discriminates against the poor, an outright majority concur.2 Were pollsters to regularly interrogate Americans about their feelings on legal costs, prosecutorial coercion, and other malfunctions, it’s hard to imagine better results; indeed, one poll indicated that a majority of Americans wanted the civil portion of the justice system changed either “fundamentally” or “rebuilt” completely.3 For all this, Americans still obey the law, more or less, though glum duty and fearful obedience cannot sustain law forever.
The exceedingly tiresome response from apologists for the status quo is that the legal system’s dysfunctions compare favorably to the flagrant corruption of the Gilded Age, the politicized chaos of the early Republic, the legally sanctioned racism that prevailed into the 1960s, and other monsters dredged from history’s depths. These apologias are descriptively true; they are also, in substance, morally off-putting demands that we accept “moderate” injustices while law sorts itself out. To state it plainly, “Better Than Jim Crow” is a grotesque reply to “Black Lives Matter.” Certain scholars can explain all day long that the U.S. Code and the Constitution protect police from the consequences of brutality, condone an abusive bail system, permit shoddy evidence, require compulsory and iniquitous arbitration, tolerate unfettered executive discretion, and so on. Again, that’s descriptively true of the state of the law at least as interpreted by courts. But the apologists have to be wrong about the true substance of the law, because if they’re right, then the law enjoys no great moral claim to our allegiance.
At some point, the public will decide that legal dysfunction has risen to an intolerable level, and shift from polite requests for incremental reform to adamant demands for fundamental change. In the moment, the day of reckoning always seems distant. But entire legal systems mutate and collapse with surprising frequency. Professor Tom Ginsburg’s team at the University of Chicago studied the mortality rate of constitutions written between 1789 and 2005, and came to the surprising conclusion that these supposedly eternal documents lasted nineteen years, on average. Even limiting the sample to the more stable polities of Western Europe, constitutional life expectancy typically ran to a mere thirty-two years; whole legal systems turned over twice in a lifetime.4 The causes and outcomes varied, but stripping away confidence intervals, confounding variables, exceptions, and the rest, all that can be neatly said is this: constitutions will be replaced when important constituencies want something new, and this happens all the time.
As proprietors of the world’s oldest written constitution, Americans might see profound Constitutional change as unlikely.5 Yet the superficial endurance of the 1789 Constitution disguises significant and ongoing evolution. The four-page document on display at the National Archives has been radically altered several times, by the Bill of Rights (1791), the Reconstruction Amendments (1865–1870, abolishing slavery and guaranteeing equal protection), the Seventeenth and Nineteenth Amendments (1913 and 1920, providing for the direct election of senators and women’s suffrage), and by the Supreme Court’s incorporation doctrine (which applied much of the Bill of Rights to the states, starting in 1925). By the mid-twentieth century, America was, if not on its fifth constitution (the Articles of Confederation being the first), then at least on version 4.0 of the 1789 Constitution. It’s hard to argue that these changes were anything but to the nation’s benefit.
However, between 1917 and 1965, a new version emerged, centralizing power in the federal executive. It’s this “Executive Constitution,” uncodified and increasingly unwieldy, that governs us today. But this new constitution is radically different than its predecessors. The Executive Constitution pushes power up, to the president and his unelected camarilla, instead of pushing it down, to the people. And it unshackles the executive, because instead of the traditional parade of “thou shalt nots,” the Executive Constitution’s predominant character is of “thou may,” a grant of discretionary authority to the executive branch.
Increasingly, the “executive branch” means the president alone. The “unitary executive” theory we encountered in prior chapters holds that the president has virtually unlimited power over the entire executive branch. Contemporary presidents claim authority to fire senior officials at any time, and have eroded the civil service job protections necessary to maintain a competent and mostly apolitical class of mandarins. On its present course, the Executive Constitution will shortly give way to a Presidential Constitution, barely distinguishable from royal prerogative. See what daylight you can find between the executive powers we’ve already covered and the British monarch’s prerogatives circa 1790. The latter included the rights to declare war and dispatch troops, appoint and fire ministers, alter the civil service, be immune from wrongs, ignore statutes absent express language to the contrary, declare states of emergency, seize property, institute or quash legal proceedings, pardon at will, and claim ownership of all members of the genus Cygnus. Only the last prerogative sticks out. Does the wall separating American liberty from Georgian tyranny now consist of… swans?
The nation certainly does not need a Presidential Constitution slouching toward the Potomac and should forbid its further development. The nation would also do well to trim the Executive Constitution that already obtains. Assuming for argument’s sake that the present arrangement was made necessary by the World Wars and Depression, it has long outlived those exigencies and now generates parallel crises of its own. As we’ve seen, every war since 1950 has been undertaken at presidential initiative. In addition to their human costs, many of those interventions had unintended consequences; Vietnam and presidential policy in the Middle East, as examples, helped spur the destabilizing inflation of the 1970s. Trump’s brewing trade war, commenced through the unilateral mechanism of “national security” orders, threatens to recapitulate the economic chaos of 1930s protectionism. The Executive Constitution was supposed to help us transcend military emergencies and economic crises, not contribute to them.
The Executive Constitution cannot be counted a resounding success, and one can reasonably question whether it counts as a constitution at all. Certainly, it does not seem compatible with jurisprudential goals or the rule of law, at least, not when the wrong president is in charge. (Of course, not having to worry overmuch about the wrong president is a chief virtue of a proper constitution.) And unlike prior Constitutional versions, no important part of the Executive Constitution has been ratified. Rather, it’s been confected by means of intra-branch swaps and brazen power grabs, all without direct input by the states or public. Accordingly, the Executive Constitution’s legitimacy and scope are unclear, as evidenced by the constant litigation challenging presidential authority and bureaucratic governance. It is essentially a revolution by paperwork, an arrangement not unlike de Gaulle’s unilateralism, which François Mitterrand described in 1964 as Le coup d’état permanent. The difference is that de Gaulle’s “coup” was entirely legal under the French constitution. America’s Executive Constitution operates in a much more ambiguous space. Not only has it not been ratified, there’s simply no way to reconcile it with the written Constitution. In substance, the Executive Constitution is a lawless reconfiguration of Constitutional power, a low-grade state of exception whose end product will be uncomfortably close to rule by decree.
Unwinding the Executive Constitution is hardly a cure-all, though it would fix a lot. Judges can impose limits, but only on a piecemeal basis—and only, as we saw with the Truman/Nixon/Clinton showdowns—when facing off against a president who is politically embattled and also capable of being shamed by contempt proceedings. A more durable, comprehensive solution must rest in the legislature. Congressional action is inconceivable while the same party controls the White House and Capitol. But when control is split, Congress has both the opportunity and incentive to reassert itself, taking greater command over two of the great levers of executive power: war-making and the bureaucracy. Rather than wait for presidents to embark on unilateral adventures, and be forced to choose between funding unwise and illegal wars or standing accused of “betraying the troops” (the twenty-first century’s “stab in the back”), Congress can bind itself in advance, firmly refusing to fund undeclared wars. As for the bureaucracy, Congress can improve and stabilize governance by requiring formal rulemaking in matters of importance and by imposing barriers to sudden policy reversals; better still, Congress could redistribute agency powers so that only enforcement remains under direct presidential control. These reforms may seem implausible, as likely as Vanilla Ice anchoring Turandot. But that’s a comment on political will and imagination, not legal feasibility. Anyway, if the core of Europe could recompose itself into the EU, notwithstanding political differences and regional egos greater than those supposed to exist in the United States, surely America can manage more modest feats of Constitutional housekeeping. As we’ve seen, constitutions evolve more frequently and substantially than is commonly assumed, even in America. And just as Washington should recompose itself, so state and local governments should unwind their own experiments with executive authority. A decent separation of powers is not much to ask; indeed, it’s a Constitutional requirement.
As for workaday improvements to matters less lofty than Constitutional rearrangement, I’ll only briefly recapitulate some of the suggestions offered in the preceding chapters. Law schools should teach students practical skills and receive appropriate public funding to reduce legal costs; Congress should expand its membership and staff so that it can fulfill its duties with something like minimal competence; agencies should be relieved of quasi-judicial powers; the shoddy and untenable doctrines of compulsory arbitration should be undone; correctional institutions should correct; prosecutors should be bound by codes of ethics enforceable by the public and the courts; and doctrines of sovereign immunity re-interred in their fourteenth-century graves.
The governing ethos is simple: public law should make itself more accessible, and more accountable, to those it serves. Law is obligated to explain itself to the people, not vice versa. Statutes should be written clearly, court opinions at the appellate level digested by public services, and agency regulations written and posted in formats accessible to those affected. Some parts of law already do this. The DMV provides study guides, the IRS provides FAQs, and the judiciary has special procedures to make litigation easier for self-represented litigants. But all parts of the legal system should do as much or better. When law seeks to hold people to account, citizens should be given a reasonable sense of what the law is, what purpose it serves, and why it’s being enforced. As we saw in Chapter 1, law has an internal morality, and it’s time for judges to take that morality seriously and earn the title of “Your Honor.” Judges should more readily accept arguments that challenge laws on due process grounds, and use their old common-law skills to question laws that are vague, overbroad, contradictory, or impossible to follow. It’s a sad reality that law is more dazzled by technical sleights-of-hand than by arguments for fairness, and that mentioning “justice” (save as a rhetorical flourish at the higher courts) is disdained as an unsophisticated waste of time by attorneys eager to “get to the point.” But justice is the point, a fact that bears constant repetition because it is so constantly ignored.
Informal citizens’ review boards across all levels of the law could help, a sort of advisory jury of legal peers that reads proposed laws and opines on their comprehensibility. If laws regulating the hiring of nannies cannot be understood by nannies or parents, those laws should be revised until they’re clear. The same holds for tax laws directed at small businesses, which entrepreneurs and CPAs should be able to understand, and for search and seizure laws, which both citizens and police should be able to fathom. These procedures would not only clarify law, but slow its mindless overproduction. It would also help if schools taught students how to interact with their legal environment, giving citizens an intuitive sense for what behaviors law seeks to control and how to find and understand relevant laws. And finally, the culture of expedience, of sidestepping good rules—a trait most powerfully embodied in the Executive Constitution—must go. In any other context, it would be dismissible tautology to insist that “rules are rules,” but law’s endless exceptions make it clear that rules aren’t rules; they have become mere stage-effects.
It’s difficult for the public to take laws seriously when law doesn’t take the public seriously. And when law fails to afford citizens respect, or treats them as cattle to be herded one way or another without consultation, justice becomes a mirage.
Law cannot survive when people cease to believe in it. Unfortunately, few legal institutions seem moved to address the decay of civic faith. Rather, they assume that social inertia and the challenges of collective action will hold the system together in its current form. Over the short term, that’s a reasonable wager, though a large one and made (as every public wager is) with other people’s chips. However, the long-term odds may not be as favorable as commonly assumed. All legal systems require voluntary compliance, but the American system has become especially fragile because it depends on both willing obedience to formal law and near-universal participation in an uncodified system of shortcuts, participation that may be withdrawn at any time.
Appreciating the system’s self-inflicted fragility requires only a brief thought experiment about plea bargaining, upon which the entire criminal justice system depends. What would happen if a philanthropist subsidized public interest firms, so that the share of defendants refusing pleas rose from 5 to 15 percent? The criminal justice system would grind to a halt. At the county level, a single billionaire could, on a whim, bring down the system by simply affording a modest fraction of defendants a real shot at the Constitutional right to due process. For example, Cook County (home to Chicago) has an annual public defense budget that barely approaches $80 million, a modest amount compared to the $500 million spent by that county’s richest resident, Ken Griffin, just on art, and just in 2015.6 Now, public defenders can’t be created overnight, not even with $500 million, but competent corporate attorneys (of which Griffin has plenty) can at least bail out defendants and force district attorneys to take cases to trial, in numbers sufficient to weaken collective-action problems. This would be expensive; white-shoe firms cost more than public defenders, but the price gap is nothing a few extra yards of Jackson Pollock couldn’t cover. A Ken Griffin public defense miracle probably won’t happen, but that’s not the point. The point is that large swathes of the law have allowed themselves to become brittle, and can be shattered by the intense activity of smaller groups or the low-intensity efforts of the broader public.
Of course, the most satisfying route to change is, and always will be, the franchise. Admittedly, the standard exhortation to vote has lost some of its power in the wake of Citizens United, election-meddling, and electoral disproportion, at least for national contests. For local legal offices, however, voting can be quite potent. Votes carry unusual weight in judicial and prosecutorial elections precisely because these offices are, in the circumspect parlance of social scientists, “low-salience”—i.e., not that important to most voters. But even national politics sometimes responds to public sentiment, at least when important donor coalitions have no strong preferences. Before tough-on-crime policies were instruments of political manipulation, they were a genuine response to citizens’ fears over then-rising crime. Were the public to realize that crime has fallen dramatically for reasons substantially unrelated to Rambo-style policing and prosecution, politicians even modestly to the left of Jeff Sessions might be thrilled by the opportunity to steer a different course. The continuous growth in national debt and relentless progress of Social Security and Medicare toward insolvency mean that politicians must cut somewhere, soon. If public opinion allows, politicians will always choose senior benefits programs over a costly war on crime, whose premises and methods have proved flawed. At the state level, marijuana ballot initiatives have already signaled that the public has tired of one part of the war on drugs. As they have done with pot, so citizens can do for police brutality. Voters can demand that mayors hold chiefs to account, as indeed many mayors—exasperated by police unions and disobedient chiefs—would already like to do. In states that allow citizens to readily amend their constitutions, a wide range of legal issues can be implemented by ballot. California does this all the time. Admittedly, one of the worst pieces of legal tinkering in that state’s history, the three-strikes law, was confirmed by plebiscite. But now that it has better data, the public is free to pursue more enlightened experiments.
Within the legal system, citizens already have more control than they appreciate or than most judges care to admit. Jury duty is a chore, but it grants citizens the chance to offer their own views about justice. And not only can jurors decide the facts, they can also opine on the justice of the law itself, by exercising the right of “jury nullification” to acquit defendants when jurors deem the criminal law unjust in itself. Nullification has been used for ill (notably to exonerate defendants accused of abusing minorities), but this is true of all powerful tools, and today, overcriminalization and overweening state power make nullification more likely to achieve justice. Judges prefer to hide the nullification right, tossing jurors who state that they will not apply laws with which they disagree, barring counsel from mentioning nullification, and allowing misleading jury instructions that suggest jurors must apply the law without exception. But the right remains and should be exercised when circumstances warrant. English jurors rebelled against the Bloody Codes and forced legal reform; American jurors can do something similar. Jurors can also consider the possible penalties in criminal cases, information that may be withheld at trial, but a sense for which can be readily obtained via a quick Google search while waiting to be called—after all, there’s nothing else to do when trapped in government’s holding pen. A general awareness of the frailties of forensic and other evidence can also inform decisions. None of this requires bending the law. To repeat, nullification is part of the law, a point our first Chief Justice made clear.7
The possibilities to do great justice in jury service are rare, because jury trials are rare, but law’s desire to intrude on our every activity provides us with constant opportunities to push back. Merely being able to articulate basic rights with reasonable cogency can be enough to stop official harassment. Certainly, the police deserve our courtesy and respect as much as we deserve theirs, and when they behave as professionals, we should accommodate. But we never need to tolerate petty despotism. When police make unreasonable or unlawful demands, they can be politely reminded of what rights they propose to violate and of their liability under § 1983. This isn’t particularly difficult. The Bill of Rights takes ten minutes to read, it costs nothing to put the local legal service agency’s phone number in your wallet (you don’t want to have to open your phone in front of police), and invoking § 1983 very politely may be sufficiently unsettling that officers discover they have other, better things to do. It doesn’t matter if you have perfect recall of the latest Fourth Amendment cases; police don’t either. And officers hardly want more paperwork if your supposed transgression is minor, much less the hassle of a § 1983 complaint and all the Internal Affairs attention it generates. Is this a strategy of privilege? Of course. But knowledge is a privilege, even if one not as powerful as wealth (or, to be frank, whiteness). Some privilege is better than none.
It’s also within our control to view good laws as the outer limits on behavior. We need not take the most aggressive positions on our tax returns or subject every worker to an indefinite NDA. We can demand the same of corporate citizens. Companies that treat reasonable laws with disdain frequently find themselves sanctioned, broken up, or abandoned by consumers, and the transient profits had by poor corporate citizenship are usually outweighed by long-term costs. Many of the most aggressive banks in the 1990s evaporated after 2008, and others took years to recover stockholder losses (if they ever did). It’s both socially reasonable, and financially prudent, to shun these companies. Many people, via their pension funds, university endowments, or other collective arrangements, have successfully amplified their voices: students persuaded universities to stop investing in countries that did business with apartheid South Africa, for instance.
All these efforts lie within our personal power, and are thus our responsibility. We can exercise our powers as opportunities arise and are also free to donate, agitate, and advocate for reform, and to defend those institutions that take our rights seriously. The alternative is that law will continue on its current course, toward a chaos of rules whose only unifying theme is discretionary power. Officials will stand above the law, insulated by law’s complexity, doctrines of immunity, and expense, and the original promise of Revolution will stand revoked. Law will become for all what it has always been for some: an arbitrary and punitive sham.
It’s best not to close fearfully. The law is bad, but not that bad, not yet. We can take steps, and when we do, it’s useful not to obsess on the consequences of failure. Better to cultivate an informed, civilized outrage. Presidents, prosecutors, judges, members of Congress, senior bureaucrats, police, and all the other members of the legal caste may be described as the establishment, officialdom, the elite, or the powerful few. But their true relationship to us is as employees, as their paychecks confirm. And law itself, though it collects no paycheck, is just as much our servant as any salaried official. It’s commendable for our employees to offer useful suggestions and to protect us from our ignoble impulses, but the legal system has confused the proper arrangement of a self-governing republic, and adopted airs well above its station. Exactly why must the assembled rise whenever some potentate, working at public sufferance and often not very well, enters a room? Because the natural order has been inverted, and the governed have allowed once-genuine respect to slide into habit, deference, and fear. Going forward, in every legal interaction, it’s useful to remember who serves whom, and to remind our employees when they step out of line.