JUDGE EDITH H. JONES Tells Harvard Law School: "American Legal System Is Corrupt Beyond Recognition"

Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit talks to members of Harvard Law School's Fed-eralist Society. Jones said that the question of what is mor-ally right is routinely sacrificed to what is politically expedient.

The American legal system has been corrupted almost beyond recognition, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, told the Federalist Society of Harvard Law School on February 28.

She said that the question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism. "The integrity of law, its religious roots, its transcendent quality are disappearing. I saw the movie 'Chicago' with Richard Gere the other day. That's the way the public thinks about lawyers," she told the students.

"The first 100 years of American lawyers were trained on Blackstone, who wrote that: 'The law of nature . dictated by God himself . is binding . in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority . from this original.' The Framers created a government of limited power with this understanding of the rule of law - that it was dependent on transcendent religious obligation," said Jones.

She said that the business about all of the Founding Fathers being deists is "just wrong," or "way overblown." She says they believed in "faith and reason," and this did not lead to intolerance. "This is not a prescription for intolerance or narrow sectarianism," she continued, "for unalienable rights were given by God to all our fellow citizens. Having lost sight of the moral and religious foundations of the rule of law, we are vulnerable to the destruction of our freedom, our equality before the law and our self-respect. It is my fervent hope that this new century will experience a revival of the original understanding of the rule of law and its roots.

"The answer is a recovery of moral principle, the sine qua non of an orderly society. Post 9/11, many events have been clarified. It is hard to remain a moral relativist when your own people are being killed."

According to the judge, the first contemporary threat to the rule of law comes from within the legal system itself.

Alexis de Tocqueville, author of Democracy in America and one of the first writers to observe the United States from the outside looking-in, "described lawyers as a natural aristocracy in America," Jones told the students. "The intellectual basis of their profession and the study of law based on venerable precedents bred in them habits of order and a taste for formalities and predictability." As Tocqueville saw it, "These qualities enabled attorneys to stand apart from the passions of the majority.

Lawyers were respected by the citizens and able to guide them and moderate the public's whims. Lawyers were essential to tempering the potential tyranny of the majority. "Some lawyers may still perceive our profession in this flattering light, but to judge from polls and the tenor of lawyer jokes, I doubt the public shares Tocqueville's view anymore, and it is hard for us to do so.

"The legal aristocracy have shed their professional independence for the temptations and materialism associated with becoming businessmen. Because law has become a self-avowed business, pressure mounts to give clients the advice they want to hear, to pander to the clients' goal through deft manipulation of the law. While the business mentality produces certain benefits, like occasional competition to charge clients lower fees, other adverse effects include advertising and shameless self-promotion. The legal system has also been wounded by lawyers who themselves no longer respect the rule of law,"

The judge quoted Kenneth Starr as saying, "It is decidedly unchristian to win at any cost," and added that most lawyers agree with him. However, "An increasingly visible and vocal number apparently believe that the strategic use of anger and incivility will achieve their aims. Others seem uninhibited about making misstatements to the court or their opponents or destroying or falsifying evidence," she claimed. "When lawyers cannot be trusted to observe the fair processes essential to maintaining the rule of law, how can we expect the public to respect the process?"

Another pernicious development within the legal system is the misuse of lawsuits, according to her. "We see lawsuits wielded as weapons of revenge," she says. "Lawsuits are brought that ultimately line the pockets of lawyers rather than their clients. . The lawsuit is not the best way to achieve social justice, and to think it is, is a seriously flawed hypothesis. There are better ways to achieve social goals than by going into court."

Jones said that employment litigation is a particularly fertile field for this kind of abuse. "Seldom are employment discrimination suits in our court supported by direct evidence of race or sex-based animosity. Instead, the courts are asked to revisit petty interoffice disputes and to infer invidious motives from trivial comments or work-performance criticism. Recrimination, second-guessing and suspicion plague the workplace when tenuous discrimination suits are filed . creating an atmosphere in which many corporate defendants are forced into costly settlements because they simply cannot afford to vindicate their positions. "While the historical purpose of the common law was to compensate for individual injuries, this new litigation instead purports to achieve redistributive social justice.

Scratch the surface of the attorneys' self-serving press releases, however, and one finds how enormously profitable social redistribution is for those lawyers who call themselves 'agents of change.'"Jones wonders, "What social goal is achieved by transferring millions of dollars to the lawyers, while their clients obtain coupons or token rebates."

The judge quoted George Washington who asked in his Farewell Address, "Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths in courts of justice?" Similarly, asked Jones, how can a system founded on law survive if the administrators of the law daily display their contempt for it?

"Lawyers' private morality has definite public consequences," she said. "Their misbehavior feeds on itself, encouraging disrespect and debasement of the rule of law as the public become encouraged to press their own advantage in a system they perceive as manipulatable." The second threat to the rule of law comes from government, which is encumbered with agencies that have made the law so complicated that it is difficult to decipher and often contradicts itself.

"Agencies have an inherent tendency to expand their mandate," says Jones. "At the same time, their decision-making often becomes parochial and short-sighted. They may be captured by the entities that are ostensibly being regulated, or they may pursue agency self-interest at the expense of the public welfare. Citizens left at the mercy of selective and unpredictable agency action have little recourse."

Jones recommends three books by Philip Howard: The Death of Common Sense, The Collapse of the Common Good and The Lost Art of Drawing the Line, which further delineate this problem. The third and most comprehensive threat to the rule of law arises from contemporary legal philosophy.

"Throughout my professional life, American legal education has been ruled by theories like positivism, the residue of legal realism, critical legal studies, post-modernism and other philosophical fashions," said Jones. "Each of these theories has a lot to say about the 'is' of law, but none of them addresses the 'ought,' the moral foundation or direction of law." Jones quoted Roger C. Cramton, a law professor at Cornell University, who wrote in the 1970s that "the ordinary religion of the law school classroom" is "a moral relativism tending toward nihilism, a pragmatism tending toward an amoral instrumentalism, a realism tending toward cynicism, an individualism tending toward atomism, and a faith in reason and democratic processes tending toward mere credulity and idolatry."

The judge said ruefully, "There has been no Great Awakening in the law school classroom since those words were written." She maintained that now it is even worse because faith and democratic processes are breaking down."The problem with legal philosophy today is that it reflects all too well the broader post-Enlightenment problem of philosophy," Jones said. She quoted Ernest Fortin, who wrote in Crisis magazine: "The whole of modern thought . has been a series of heroic attempts to reconstruct a world of human meaning and value on the basis of our purely mechanistic understanding of the universe."

Jones said that all of these threats to the rule of law have a common thread running through them, and she quoted Professor Harold Berman to identify it: "The traditional Western beliefs in the structural integrity of law, its ongoingness, its religious roots, its transcendent qualities, are disappearing not only from the minds of law teachers and law students but also from the consciousness of the vast majority of citizens, the people as a whole; and more than that, they are disappearing from the law itself. The law itself is becoming more fragmented, more subjective, geared more to expediency and less to morality. . The historical soil of the Western legal tradition is being washed away . and the tradition itself is threatened with collapse."

Judge Jones concluded with another thought from George Washington: "Of all the dispositions and habits which lead to prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens."

Upon taking questions from students, Judge Jones recommended Michael Novak's book, On Two Wings: Humble Faith and Common Sense. "Natural law is not a prescriptive way to solve problems," Jones said. "It is a way to look at life starting with the Ten Commandments."

Natural law provides "a framework for government that permits human freedom," Jones said. "If you take that away, what are you left with? Bodily senses? The will of the majority? The communist view? What is it - 'from each according to his ability, to each according to his need?' I don't even remember it, thank the Lord," she said to the amusement of the students. "I am an unabashed patriot - I think the United States is the healthiest society in the world at this point in time," Jones said, although she did concede that there were other ways to accommodate the rule of law, such as constitutional monarchy.

"Our legal system is way out of kilter," she said. "The tort litigating system is wreaking havoc. Look at any trials that have been conducted on TV. These lawyers are willing to say anything."

Judge Edith Jones has been mentioned as a potential nominee to the Supreme Court in the Bush administration, but does not relish the idea. "Have you looked at what people have to go through who are nominated for federal appointments? They have to answer questions like, 'Did you pay your nanny taxes?' 'Is your yard man illegal?' "In those circumstances, who is going to go out to be a federal judge?"

Judge Edith H. Jones has a B.A. from Cornell University and a J.D. from the University of Texas School of Law. She was appointed to the Fifth Circuit by President Ronald Reagan in 1985. Her office is in the U.S. Courthouse in Houston.

The Federalist Society was founded in 1982 when a group of law students from Harvard, Stanford, the University of Chicago and Yale organized a symposium on federalism at Yale Law School. These students were unhappy with the academic climate on their campuses for some of the reasons outlined by Judge Jones. The Federalist Society was created to be a forum for a wider range of legal viewpoints than they were hearing in the course of their studies.

From the four schools mentioned above, the Society has grown to include over 150 law school chapters. The Harvard chapter, with over 250 members, is one of the nation's largest and most active. They seek to contribute to civilized dialogue at the Law School by providing a libertarian and conservative voice on campus and by sponsoring speeches and debates on a wide range of legal and policy issues.

The Federalist Society consists of libertarians and conservatives interested in the current state of the legal profession. It is founded on three principles: 1) the state exists to preserve freedom, 2) the separation of governmental powers is central to our Constitution and 3) it is emphatically the province and duty of the judiciary to state what the law is, not what it should be.

The constitution had provided that all the public functionaries of the Union,...all the state governments, should be under oath or affirmation for its support.

Hmmm. This causes one to wonder about the outcome of a legal action regarding the instance of a functionary (law enforcement) refusing to honor the 4th. Amendments compulsory, "oath or affirmation" , with regard to acquiring a search warrant. Could the LEO claim religious issues if he is an atheist? A Muslim? Is the 4th. Amendment in violation of the 1st. Amendment by requiring an "oath or affirmation? Should law enforcement be compelled by the Constitution to have moral scruples?

All we would need is one detective to refuse to swear, or affirm, upon his conscience that the probable cause was true by which he is asking a magistrate to issue a search warrant and would be a violation of his 1st. Amendment rights.

Go to it, ACLU!

I've been following this exchange with rapt interest.

You've touched upon the usual suspects taught in public schools about the Great Depression, it's causes, and it's effect on the people at the time, and offered the usual bromides.

For your entertainment, consider this:

In 1913 the 16th amendment was ratified. 16 years later, the US, in effect, declared bankruptcy. Since you cite the credit collapse as the main engine for the demise of the economy at the time, would you consider this a mere coincidence?

Smoot-Hawley aside (it's real effects can be debated until the cows come home, without resolution), the perceptive moneymen of the time, chief among them J.P. Morgan, saw what was coming, and headed for the nearest exit. Since you have implied that these Robber Barons were a cancer upon the economy at this time, perhaps you can tell us why you think these storied moneymen are the Bad Guys in this story?

The business cycle has been with us since time immemorial, and due to the dynamic nature of a capitalist system, excesses occur that sometimes cannot be displaced in a timely fashion. Other times, there are forces at work, which most people cannot see, that will do things and make decisions that are really inimicable to the smooth functioning of the economy.

The FDR presidency was an enormous shock to both the nation and it's economy. Hoover gets the rap as the do-nothing president, and compared to what FDR did, that's true. But the simple fact of the matter is, Hoover, after the stock market crash, became the most activist president the country had ever had, up to that time.

I've always found Friedman interesting (I was taught by a protege of his while in school), but I've got to differ about throwing money around when the economy goes south. The rules of economics don't change or become suspended just because we hit bad times. You have to grow out of them, by making the milieu businesses operate in a little better for them, and coincidentally, for everyone (except politicians, and maybe lawyers).

Economies are about markets, and the people that partake of them. Markets deal in value. Governments do not manufacture or make anything of value for the marketplace. They redistribute according to their own whims. Redistribution is not a function of marketplace growth. I'll grant you there is some short-term benefit to be had, but following it to it's logical conclusion it will only lead to distortions in the marketplace, felt by raising prices, shortages, and the inevitable corruption that follows such exercises.

In closing this long-winded tome, let me just say that FDR had nothing to do with recovering from the Great Depresion. Him and his socialist henchmen were economic idiots. No, it took Hitler and Hirohito to pull us out of that morass.

And in spite of FDR's Herculean efforts to reshape America more to his liking (G. Rexford Tugwell admitted in later years that their aim was, indeed, to rewrite the Constitution), he did not save capitalism and democracy from itself.

CA....

I'm off to the Washington State Supreme Court with my petition to recall Christine Gregoire. During the sufficiency hearing, the judge ruled that the members of the Washington State Supreme Court have the inherent power to intentionally violate the Washington Constitution, to obstruct justice, violate Title 18 US Code 241 and 242; and that based on the separation of powers doctrine, has no authority to order the investigation and prosecution of state supreme court justices who commit mail fraud, obstruct justice and otherwise violate Title 18 US Code section 1962(c) and (d) (RICO).

That was his exact ruling, though he did not use those exact words.

I'm serious.

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