Tuesday, March 29, 2011


It was important for Cooley’s new Law Review to be a credible scholarly publication.

We were the new kid on the block. The non-conforming, anti-establishment professional school with no university affiliation. No cadre of Phd’s. No football team.

The maiden issue of our Law Review, especially the lead article, had to be laden with footnotes, citations of authority, references to recognized authors and their works.

I dug in with determination. Soon my office was piled high with books, strewn with fools cap, and cluttered with three by five cards. I had always needled the faculty about keeping their offices tidy. Now I was another messy professor.

But if I wanted to be scholarly, I was not about to write a speculative work of pure theory. Erudition was not my strong suite. My whole career had been directed toward action.

Mere expository writing didn’t appeal to me. To begin with, I have a very selective memory. People who win trivia competitions amaze me. I remember what is important to me. If it isn’t going to be on the final, forget it.

As a lawyer and a judge, especially as an appellate judge, I wrote to persuade. I analyzed to decide. To my way of thinking, advocacy is the highest and most meaningful form of communication.

Law and politics were both my vocation and my avocation. I had read many of the works of Thomas McIntyre Cooley, the learned 19th century jurist for whom our law school was named. He was a prodigious scholar and writer. His work on constitutional limitations remains on the first rank even today.

Especially today. Cooley wrote about constitutions back in a day when people still understood the legal and political realities associated with adopting the supreme law of the land.

I was appalled, both as a judge and as a legal educator, that one could graduate from college and even from law school in the United States, and never read the 4,543 words that comprise the United States Constitution.

Earlier in my judicial career, I was invited to teach a course in the American Constitution at the University of Detroit. I always began the first day of class by telling the students – they were all juniors and seniors – to take out a piece of paper and write down the Preamble to the U. S. Constitution.

Quite a few of them wrote “We the People…” That’s all. Just “We the People…”

Once in a while, I would get a truly poetic and patriotic essay about justice, equality, and freedom, which, while high sounding and impressive, had no similarity to the actual Preamble.

In the three or four years I taught there only a handful of students got it right.

Constitutional Law is a required course in almost all American law schools, but I doubt that any Con Law professor requires his or her students to read the constitution. The focus is all on Supreme Court cases.

Charles Evans Hughes, a Chief Justice of the United States Supreme Court famously said, “The constitution is what the Supreme Court says it is.” Professor Felix Frankfurter, who later was appointed to the Supreme Court by Franklin D. Roosevelt, went even further. He said. “The Supreme Court is the Constitution.”

In 1949, George Orwell wrote a book called “1984.” It was an imaginative journey into a future decade when advances in science would make human freedom and democracy obsolete.

By 1984, it was coming to pass. We had put a man on the moon. Americans thought government could do anything. They didn’t know or care how things got done. Whether laws were made by Congress, or declared by the Supreme Court, or commanded by the President made no difference.

Just get the job done. Control inflation. Protect the environment. Rev up the economy.

America was becoming a government of men and not of laws. I felt it was time to get back to basics.

No comments:

Post a Comment