May 20, 2010

Ruminations About Law and School (Part 1)

It is rather fitting, I think, that the same day that marked the passage of my last law school class was also the one on which I discovered, much to my chagrin, my first gray hair. The last three years, as I have observed repeatedly before, have not been kind, either on my health or my mental disposition. And as the reality begins to set in—I am actually done with law school?—the inevitable question that will follow in the weeks to come is already looming: Was it worth?

But the end of classes is not quite the end of law school. With three finals left to complete, the chances of soul-crushing failure remain as high as ever (indeed, over a lifetime, those chances are necessarily 100 percent), and as such, I will defer the nostalgia and existential angst to another day. The end of classes, however, does provide an opportune moment to reflect on the subject of my endeavors over the past three years, and more importantly, the infuriating aspects thereof. In that vein, in the next two posts, I will discuss aspects of both constitutional and statutory law that simply don't make sense and should be fixed—immediately. (There goes my Senate confirmability—oh wait, too late.)

At the outset, a disclaimer regarding normative commitments (read: hackery) is in order. Having spent the past year immersed (drowning might be a better word) in legal academia, I can personally attest to the fact that there are few journal articles on law these days not driven by ideology, and absolutely no blog posts. And though it is likely impossible to eliminate one's normative bias entirely, in selecting my list of gripes, I have tried not to let my opinions on the subject interfere. Luckily, when you're compiling a list of shit that doesn't make sense, you don't need an ideological commitment to hack on; logic will suffice.

Disclaimer complete, I then turn to the Constitution (as I must—what?). Now, US constitutional law is an immense and intricate field of study, replete with moral and philosophical debates of the highest order. These, I leave untouched. As we all know, I am far more concerned with inanities—small changes that would make no difference on the state of the law, but which would make pedants like myself feel immensely better. Such inanities abound in constitutional law, but I pick three textual absurdities that have infuriated me for years: the equal protection component of the due process clause; substantive due process; and everyone's favorite, the Eleventh Amendment.

Equal Protection and the Fifth Amendment

The first one is a rather simple problem—and has an equally simple solution. The Fifth Amendment, which applies to the federal government, has a Due Process Clause whereas the Fourteenth Amendment, which applies to States, has both a Due Process Clause and an Equal Protection Clause. A long time ago, the Supreme Court decided that despite this inconsistency, the doctrine of equal protection should apply to both states and the feds for the sake of avoiding absurdity (the case was Bolling v Sharpe (1954)). Which is all well and good, except for one thing: no one bothered to fix the goddamn textual absurdity. So now we get nonsense like the Equal Protection component of the Fifth Amendment's Due Process Clause. What? Does that make sense to anyone?

The solution is equally simple: add an Equal Protection Clause to the Fifth Amendment. Bam. Absurdity resolved. And since nothing substantive would change as a consequence, who could possible care? (Nihilists, maybe, but there's nothing to be afraid of with them.) People who hate equal protection today could continue to hate it tomorrow, and pedants (like me) could sleep better at night.

Substantive Due Process and Privileges or Immunities

Speaking of substantive, what exactly is substantive due process? Oh yeah, I remember: the culture wars. More specifically, implied fundamental rights. That's a big deal, right? Maybe. But more importantly, it's also another damn absurdity! Process is the opposite of substance; you can't have substantive process. It makes no sense!

You know what would make sense though? Having implied fundamental rights come under another clause of the Fourteenth Amendment: the long-dead Privileges or Immunities Clause, killed off over a century ago in The Slaughterhouse Cases (1873)! Rights are sort of like privileges; rights have absolutely nothing to with substantive process (whatever that is). Courts have already developed an enormous jurisprudence regarding implied fundamental rights, and love it or hate it, it's not going anywhere. So why not bring some sense by using a clause that actually has something to do with the subject? Like with the Fifth Amendment, nothing changes in terms of substance, and pedants rejoice! Sure sounds Pareto optimal to me. (Bring it back! Bring it back!)

The Eleventh Amendment

The Eleventh Amendment to the US Constitution reads: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Easy enough, right? But what about citizens of the same State? Can they sue their own state in federal court? The text seems to say yes, right? But the drafters did not want that, right? No? But then, how could it be no? It doesn't say that! And what about Chisholm?!

Shut up! Shut up! Shut up! The Court answered this question in 1890, once again resolving a perceived absurdity: the answer is no. States can't be sued in federal court (except when they can, but let's not get started on that). Yet, the intellectual masturbation has continued for a century subsequent with no signs of abating anytime soon. Can we just call it quits? Anyone got a quill handy? I have a redline (still subject to client review and approval, of course): the same or. There. Done. Anti-immunity people can still have their abrogation and Ex parte Young fiction; a full chapter of Hart & Wechsler and God knows how many law review articles go away; and the world is a better place.

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I suppose one could make the argument that since it is of no real consequence, why should anyone care about these textual absurdities? As long as the law is functioning and everyone knows how it operates, who really cares what it says? And more importantly, isn't this blog post itself a massive waste of intellectual capital that could be better spent? Was this really what $200,000 and three years bought you, Rohit?

The first criticism is not without its merit. Practically speaking, it makes no difference, so why incur the cost of enacting change? And let's not kid ourselves: despite the total irrelevance of the changes, the costs are without doubt intractable. Much like in computer science, path dependence in law is hard to escape (without scrapping the whole damn code base republic). But just because something has to be tolerated does not mean it should not be questioned. If anyone runs on a ticket of correcting absurdities in the Constitution, they have my vote.

As to the second point, it hardly deserves comment. For there to be waste, there has to be some place better that the capital (insofar as it exists at all) could be invested. And since I am definitely worthless, and most likely, so are you, there is no loss here. There can be no waste when there was nothing there to begin with. Story of my life. Yay law school!