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Contents | Reviews | Talkback || Archive || Books-on-Law Home
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Contents
  • An Exchange on Voluntary Euthanasia:
    • Gerald Dworkin, R.G. Frey & Sissela Bok. Euthanasia and Physician-Assisted Suicide. Reviewed by Margot L. White.
    • A reply by Gerald Dworkin to Margot White.
    • A reply by R.G. Frey to Margot White.

  • Hyman, Harold M. Craftsmanship and Character: A History of the Vinson & Elkins Law Firm of Houston, 1917-1997. Reviewed by Robert W. Gordon.
  • Keen, Lisa & Suzanne B. Goldberg.  Strangers to the Law: Gay People on Trial. Reviewed by Nan D. Hunter.
  • Liman, Arthur L. Lawyer: A Life of Counsel and Controversy. Reviewed by Daniel E. Troy.
  • May, Christopher N. Presidential Defiance of "Unconstitutional Laws: Reviving the Royal Prerogative. Reviewed by William C. Banks.
  • Noonan, Jr., John T. The Lustre of Our Country: The American Experience of Religious Freedom. Reviewed by Thomas G. West.
  • Richards, David A. Women, Gays and the Constitution: The Grounds for Feminism and Gay Rights in Culture and LawReviewed by Nan D. Hunter.
  • Talkback
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An Exchange on Voluntary Euthanasia

Moral Equivalence Redux
by Margot L. White

Euthanasia and Physician-Assisted Suicide
Gerald Dworkin, R.G. Frey & Sissela Bok
Cambridge University Press, 1998
Cloth: $49.95 / Paper: $14.95
Pp. 139

One always hopes for something new on the subjects of euthanasia and physician-assisted suicide; but, alas, one is more often disappointed than pleasantly surprised.  It is with regret, therefore, that I must confess disappointment with most of this volume.

This short book comprises the second unit in a planned series of polemical volumes on applied ethics.  The series editor, R.G. Frey, doubles as one of the philosopher-contributors to this one.  In his introduction, he promises that the series will "show the application of philosophy to practice" and "capture [the] clash" among contending ideas and positions on contemporary ethical issues.

Whether this book succeeds in these goals depends, to some extent, on the reader’s expectations regarding applied ethics and applied philosophy.  In particular, it depends on the reader's views regarding the need to ground debates about physician-assisted suicide (PAS) and active voluntary euthanasia (AVE) in the realities of clinical medicine.  The stated goal of Cambridge University Press’s For & Against series is to enable each of the chosen philosophers to state and defend his or her position using as much philosophical theory as needed. This much is, indeed, achieved and in relatively -- and blessedly -- brief space.

The goal of a "clash," however, between or among sharply opposing views falls somewhat short of the mark.  Despite the fact that both Frey and Gerald Dworkin are proponents of PAS and AVE, while Sissela Bok is opposed to legalizing AVE and (somewhat equivocally) PAS, their positions for the most part glide past one another, like the proverbial ships in the night.  Some of this is due in part to Sissela Bok’s preference for a less direct and non-confrontational style, a not altogether unwelcome approach.

Dworkin on Death and Medicine

For reasons that are not made clear, Dworkin sets up, as his philosophical straw man, physician and ethicist Leon Kass, whose position against doctors killing their patients under any circumstances is widely known.  Tearing apart Kass’s arguments, however, says little about "The Nature of Medicine," which is the title of the essay.

Dworkin takes issue with Kass for, among other things, stating that medicine has "a" goal, rather than several, sometimes conflicting, goals.  In assigning medicine the single goal of "health," Dworkin asserts, Kass ignores the goal of relieving suffering.  Despite his own chapter heading, Dworkin fails to note that Kass is arguing about the nature of medicine as a profession and, as such, that medicine is bound to stay within the limits of its own capacities.  In this regard, vast dimensions and magnitudes of human suffering -- loneliness, grief, war, poverty, to name but a few -- are quite clearly beyond the reach of medicine.

Relief of physical suffering, on the other hand, is usually possible, but not always.   Realizing the goal of "health" would necessarily encompass relief of physical suffering.  Such suffering, and not the more sweeping issue of human suffering as a whole, is appropriately the issue at stake in PAS/AVE.

Here, as elsewhere, Dworkin’s arguments suffer from distracting overstatements and factual errors.  Example: Kass has pointed out that physicians were traditionally prohibited from euthanasia as well as sexual relations with patients because of the unusual temptations to which physicians were exposed.  Dworkin retorts, "Surely doctors are not tempted to kill their patients."  With all due respect, we know that many physicians, by their own admission, are not only tempted but succumb to the temptation.  Dworkin is surely familiar with clinical studies and numerous physician surveys attesting to these practices.  Why he omits reference to them is unclear.

The Moral Equivalence Hypothesis

Dozens of commentators precede Dworkin in arguing for and against the moral equivalence hypothesis first articulated by James Rachels in his 1973 article, "Active and Passive Euthanasia."  Despite the vast literature on the subject, there is no consensus.  The Supreme Court’s decision in Vacco v. Quill (1997) overturned the Second Circuit Court of Appeals on the question of moral equivalence, denying that there exists no moral distinction between withdrawal of life support and PAS.

The Supreme Court based its opinion on a view echoed in this book by Sissela Bok: that some lines of demarcation should be maintained because they are widely accepted and they work, not because they are perfect or always crystal clear.  As the Court stated in Vacco, the line between killing and letting die, between withdrawing treatment and lethal injection, should stand because it is "widely recognized and endorsed in the medical profession and in our legal traditions."

Regrettably, Dworkin’s analysis and defense of the issues at stake in the moral equivalence hypothesis offer no new insights or revelations.  They would perhaps be more persuasive if they were not peppered here and there with errors and exaggerations.   In one instance, Dworkin astounds by asserting that "withdrawal cases . . . are almost always classified as instances of AVE precisely because it is the doctor who is the last causal actor in the patient’s death." (p. 27)  Classified by whom?   Not by doctors, certainly.  And not by courts.  Dworkin offers no reference for this patently untrue statement.

On another level, Dworkin’s claim that "withdrawal cases" cannot be philosophically or morally distinguished from euthanasia cases fails when tested against actual practice.  The distinction that counts is that patients whose life supports are removed do not always die as an immediate or direct result of that removal, but often live an appreciable length of time thereafter.  Patients to whom lethal mixtures are administered for purposes of euthanasia, on the other hand, die inevitably within a matter of hours.

Falling again into overstatement, Dworkin bluntly asserts that doctors "know as a certainty that death will ensue" (p. 38) in withdrawal cases.  A more accurate description would be that doctors can often predict with a high degree of probability that certain patients will die within an appreciably short time, whereas for other patients, such predictions are more difficult, sometimes impossible, and never certain.   Further, to say that doctors know, in such cases, that death will be "hastened" is not to say very much at all.

Moreover, as many others have also pointed out, although morphine may be provided to a patient to ease air hunger in the process of weaning him from a respirator, the clinical activities and the pharmacology involved in this procedure would be impossible to confuse with those required for euthanasia.  As Sissela Bok notes, quoting Anthony Flew repeating Edmund Burke: "Though no man can draw a stroke between the confines of night and day, still light and darkness are on the whole tolerably distinguishable." (p. 114)

Dworkin on Double Effect

Similar problems of overstatement and error arise in Dworkin’s assault on the principle of double effect.  Leaving aside the familiar arguments on both sides of this debate, my quarrel with Dworkin’s treatment of the issues stems from his failure to ground his conceptual categories in the complexities of clinical practice.  Doing so might have allowed him to acknowledge the genuine difficulties that would arise if his arguments succeeded in winning the day.

For example, he announces that "all medically competent people" know, "to a high degree of probability," that a dosage of morphine that "could" cause death "will induce or hasten death." (p. 22, emphasis added).   Not only does Dworkin vastly over-state physicians’ knowledge of palliative medicine, but his statement is inaccurate in other respects as well.  Physicians who are knowledgeable in palliative care attest to the fact that, in practice, it is extremely difficult to induce death with morphine, that it requires significantly and noticeably larger doses than for pain management.  Moreover, it is the lack of knowledge of the behavior of morphine and other analgesics that leads to the fear of unintentionally causing death, or appearing to intentionally cause death, and thus often to under-treatment.

Most importantly, however, the effect of Dworkin’s argument -- that there is no morally relevant distinction between a foreseeable possibility of death and an intended certainty of death -- would very likely eviscerate whatever progress has been made in this extremely troubling aspect of medical care.

Quibbles

One hesitates to quibble with what might be considered trivial mistakes.  However, the practical ramifications of this debate are of enormous magnitude in terms of social policy.  Thus, evidence of lack of attention to accuracy and clarity on either side does not bode well for our ability to manage implementation of such complex and momentous practices.

On this level, the book contains more flaws than would seem acceptable.  Some of Dworkin’s statements are simply puzzling and one can only mutter, "what on earth does he mean?"  For example, "In PAS, then, to supply the means of death is not itself to supply death."  How does one "supply death" in any situation?

Some of the factual errors might have been caught by more careful editing or background research.  Dworkin refers, for instance, to the authors of "Requesting Physician-Assisted Death" (NEJM 331, 1994. Pp. 119-123) as "a group of physicians."  Of the six, Quill, Brody, and Meier are physicians; Miller, Fletcher and Gostin are not.

Frey and the Slippery Slope

The essay by Frey entitled "The Fear of the Slippery Slope" is, regrettably, somewhat predictable.  In addition to repeating arguments and counter-arguments that have been raised numerous times before, he reiterates many of Dworkin’s arguments for moral equivalence.  More troubling, however, is that he repeats them as if he does not quite grasp the implications of what Dworkin has asserted.

Frey dismisses, for example, the concerns of noted ethicist John Arras that legalization of PAS will result in the collapse of distinctions between PAS and AVE because the arguments supporting both are the same (autonomy and relief of pain).  Yet Dworkin endorses and advocates for precisely this development.  Dworkin argues, after all, that euthanasia should be permitted within the established legal right to refuse treatment.

For another example, Frey’s counter to the slippery slope concerns is also familiar: safeguards and guidelines and the inevitable demand for "proof" that the downward slide will occur.  Sissela Bok effectively points out that slippery slopes occur on multiple dimensions, and that we are wise to be wary of our faith in adherence to rules (she cites clinical studies) and even our faith in the discernment of individual physicians in the face of complex and nuanced decisions.  Again citing evidence, Bok points out that physicians as a population manifest significant stress-related impairments as well as drug and alcohol dependence that may, in individual situations, lead to faulty judgment and mistakes.

Frey, like many others, believes that "human ingenuity" is capable of devising guidelines to confine the practices and prohibit abuses; but, rather tellingly, he makes no mention of the Netherlands.

Once again, the criticism must be raised that Frey, like Dworkin, divorces his theoretical arguments from clinical realities.  Abstraction certainly has its place in philosophical discourse, but applied philosophy, it would seem, should be required to measure theory against observation, experience, and, in this case, clinical evidence

Bok Looks at History and Present Practices

In graceful prose and with a tone of utmost civility, Sissela Bok manages to dispute both Dworkin’s and Frey’s positions without mentioning either by name.  She even manages to delineate the problems posed by Dworkin’s "moral equivalence hypothesis" without mentioning it by name.  In many respects, her essays are among the most restrained and lucid that it has ever been my pleasure to read on these subjects.

Bok gives the impression of being somewhat "above it all," addressing issues from a distance.  At times the historian, at times the moderator of the debate itself, Bok seems reluctant to declare herself too starkly, particularly on the issue of physician-assisted suicide.  She does reaffirm her earlier views on euthanasia, which she first articulated in her 1970 Ph.D. thesis, "Voluntary Euthanasia," but leaves open the possibility of approving PAS in some cases.  Readers hoping for a sharp and absolute position from her will be disappointed.

Bok's essays, however, are historically informed and culturally specific.  She displays a consistent aversion to simplistic solutions and abstractions that are unlikely to serve the purpose of clarifying or illuminating issues.  Bok supports her assertions with evidence.  She cites clinical studies on end of life care and palliative medicine experts regarding the nature of suffering.  She deftly refutes Frey’s dire predictions of Kevorkian-style executions in the absence of legalization as an attempt to construct a slippery slope argument in opposition to a slippery slope argument.  She cites not only the inadequacies of current medical practice with regard to long-established legal rights and protections for patients, but also the dynamic and ultimately unpredictable momentum that can overtake any major social change.  Given both of these realities, she points out, neither "side"can be certain how the practices of PAS/AVE would unfold in this country if either or both were legalized.

In effect, Bok exhorts everyone engaged in this debate to pay attention: the details, the facts, the evidence and the context matter.  Whether these features would matter to someone uninitiated in the debates and unaware of the clinical issues is, of course, unknowable.  That they should matter is obviously part of the debate itself.

Margot White is an Assistant Professor of University Studies at Portland State University in Oregon.  She received her undergraduate degree from Brown University and her law degree from the University of Virginia.  She was previously on the faculty of the University of Virginia School of Medicine, and served as an ethics consultant to the university hospital for five years.

Editors’ Note: Last November, Books-on-Law published its first Exchange on Voluntary Euthanasia.

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A Reply to Professor White
by Gerald Dworkin

It does not bode well for the cogency of a review of a jointly-authored text that the reviewer is not able to distinguish between the contributions of the various authors.   Professor Margot White consistently criticizes me for statements in Chapter 2, "Distinctions in Death," which is clearly labeled at the beginning of the chapter as the work of Ray Frey.  For example, "Falling again into overstatement, Dworkin bluntly asserts that doctors know as a certainty that death will ensue in withdrawal cases."  Not only does this attribute a view to me that is Frey’s; it attributes to Frey a view that is clearly not the one he holds.

The context of the paragraph from which Professor White produces her snippet is that of "withdrawal of feeding tubes" (p. 38, italics added), not that of any withdrawal of medical care.  If White has evidence that we do not know as a certainty that death will ensue or be hastened as a result of the patient receiving no nutrition, this is startling medical news!

I leave to my colleague the further defense of his views, so I turn now to mine.

Professor White claims that "For reasons that are not made clear, Dworkin sets up, as his philosophical straw man, physician and ethicist Leon Kass, whose position against doctors killing their patients under any circumstances is widely known."  Again, the only inference possible is that White is a careless reader of texts.  For I make perfectly clear on the very first page of my chapter why I intend to attack Kass’s views:

Certainly the most important and influential article defending the view [that doctors must not kill] is one by Leon Kass.  It is almost impossible to find an article opposing medically assisted dying in any of the major medical journals, such as the New England Journal of Medicine and the Journal of the American Medical Association, that does not cite this article as establishing the view that physicians must not aid patients in dying. (p. 6)

It is not merely that, as Professor White puts it, "his views are well known," but that they are taken to be correct.  To not discuss this influential article in a treatment of assisted suicide would amount to philosophical malpractice.

White’s next misreading is the claim that, when I refer to the "goal of relieving suffering," I am somehow missing the point that there are many areas of human suffering beyond the reach of medicine.  True enough, but any reasonable reader of my references to suffering will see that they are all clearly references to the suffering of patients in extremis:

[Doctors ought] not only seek to preserve and restore the health of their patients but seek to alleviate their pain, comfort them when this is not possible, and (perhaps) aid them in their effort to have the kind of death that they would prefer. ( p. 13)

The section of the review, entitled "Dworkin on Double Effect," should read: "Frey on Double Effect."  The section of the review called "The Moral Equivalence Hypothesis" which begins "Dozens of commentators precede Dworkin in arguing for and against the moral equivalence hypothesis" again refers to work clearly attributed to Frey.  The section marked "Quibbles" contains a quote from me that is, again, a quote from Frey.

Even if Professor White got the attribution right, she would be off the mark.  She pretends to be puzzled by the comment that "In PAS, then, to supply the means of death is not itself to supply death."  Even without further context, I wager that the average philosopher/doctor/lawyer knows exactly what this (perhaps infelicitous) expression means.  It means that the doctor does not herself kill the patient.   But the rest of the passage makes it perfectly clear what is meant:   "[I]n Pas, [the doctor’s] supplying the pill stands to his patients death in a different relation from, in the morphine case, a doctor’s act of injecting his patient with a largish dose of morphine." (p. 26)

I plead guilty as charged to having referred to a group of physicians when only three of them were physicians.

The one substantive criticism Professor White makes has some validity.  I should not have said that doctors are not (sometimes) tempted to kill their patients.  What I should have said, and do say in a more recent article ("Sex, Suicide and Doctors," Ethics, April 1999), is that the greater temptation is to over-treat rather than under-treat, and to refuse to listen to and abide by the clearly expressed wishes of patients to be allowed to die in certain circumstances.  One impressive study that supports this is: "A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients: Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatments," JAMA, vol. 274, no. 20, 1995, pp 1591-1598.

Gerald Dworkin is a Professor of Philosophy and Adjunct Professor of Law at the University of California, Davis.

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A Reply to Professor White
by R. G. Frey

From Professor White’s review, one can get no sense of the case that Jerry Dworkin and I mount against several well-known arguments employed today in support of the impermissibility of physician-assisted suicide (PAS).  With no sense of the nature, depth, and variety of argument that comprise our case, it goes without saying that all subtlety of argument escapes White’s notice.  A pity, really, since so much of the moral case for, as well as against, PAS lies in the subtleties with which distinctions are drawn and arguments using them deployed.

Moral Equivalence

In the chapter on "distinctions," I spend a good deal of time, not in asserting a moral equivalence of PAS and active voluntary euthanasia (AVE), but in assessing several grounds that have been advanced in support of an alleged moral difference between them.   The last ground considered is that of causation -- that in PAS the patient is the last causal actor in death, in AVE the doctor -- and I consider whether this can ground a moral difference between PAS and AVE.  I argue that it cannot.  Professor White shows nothing wrong with my arguments in this regard; indeed, she avoids them.

Withdrawal

In at least three places in my chapters on "distinctions" and "slippery slopes," I distinguish different kinds of withdrawal cases (not all withdrawal cases involve the withdrawal of food and hydration) and different ways of construing such cases.   For example, they can resemble morphine and ventilator cases: the doctor actively does something in withdrawing, just as he actively does something in injecting morphine and turning off a ventilator.  Looked at this way, they look like cases of AVE.   The mere fact that Professor White does not want so to look at them cuts no ice whatever, morally.  But I also go on to distinguish other ways of regarding withdrawal cases, including, of course (pace White’s claim) regarding them as cases of PAS.  To this construal, I devote a good deal of space.

Withdrawal-Certainty of Death

As for the sentence Professor White quotes about doctors knowing death will ensue as a "certainty" in withdrawal cases (p. 38), the text makes very clear that I am now talking about cases of withdrawal involving food and water.  And, yes, death does ensue through starvation.  As a result, one can get nowhere with White’s claim that "patients whose life supports are removed do not always die as an immediate or direct result of that removal" and that that is the "distinction that counts" with cases of euthanasia.  The contrast she wants is removed.

Double Effect

In my chapters, I give arguments for rejecting the moral significance of the distinctions that I take to be at the center of the doctrine of double effect.  Professor White neither shows these arguments unsound nor advances any arguments of her own in support of the doctrine.  Silence on these counts is not synonymous with successful critique.   She does say that I do not ground my discussion in the "complexities of clinical practice," which purportedly leads me into over-stating doctors’ knowledge of palliative medicine and understating under-treatment.  Yet, she fails to note that I turn to these very topics at the beginning of the chapter on slippery slopes.   She also claims to think that there is a morally relevant distinction between a foreseeable possibility of death and an intended certainty of death.  So there is.   But what about a foreseeable certainty of death, one that involves the doctor in withdrawing the very feeding tubes that keep the patient alive?  The doctor foresees with certainty the patient’s death; he knows the patient will die and takes the very step that will bring about that death.  Is there now a morally relevant distinction with intending death as a certainty?  Let’s hear the argument.

Quibble.  Professor White’s rather silly remark here, about death and the means of death, has already been dealt with by Dworkin.

Slippery Slopes

Here, too, Professor White is silent on the issue of substance.  Slippery slope is one of the most abused argument forms in ethics, employed in all kinds of cases in order to show all kinds of fears justified.  I go at length into types of slippery slope arguments, into the sorts of considerations relevant to each type, and into why I think the kind of slope argument relevant to the discussion of PAS does not bear the weight put upon it by opponents of PAS.  I do not "dismiss" John Arras’ concerns in this regard; indeed, I pay him the honor of taking his position seriously and considering it at length.  That I find fault with it is true.  So where am I mistaken?   Where have my arguments gone awry?  Silence again.

Safeguards

Like most people who use slippery slope arguments against PAS, White urges us to be cautious in thinking that we can write safeguards that will prevent us from sliding down the slope of taking life.  Well, of course we should be cautious where something so serious is concerned.  But caution and wariness does not show that adequate safeguards cannot be written and instituted, here anymore than elsewhere.  We do not want people to think, because we believe there can be morally permissible cases of justifiable homicide, that they may now kill people willy-nilly.  But who thinks this?  And we do think there are cases of morally permissible homicide.  To many, there are permissible cases of abortion, suicide, capital punishment, etc., and we have not re-instituted the Nazi camps and wholesale national slaughter.  So we need more than the inner conviction of opponents of PAS to convince us that safeguards are beyond us in that case.

My suggestion to readers of Professor White’s review is to read the book.  The position that Dworkin and I take is neither so tired as White pretends, nor so easily dispatched as she would hope.

Raymond G. Frey is Professor of Philosophy at Bowling Green State University in Ohio.  He received his D. Phil. degree from Oxford University in the United Kingdom.

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Reviews A Firm of Their Own
by Robert W. Gordon

Craftsmanship and Character:
A History of the Vinson & Elkins Law Firm of Houston, 1917-1997

Harold M. Hyman
Athens, GA: University of Georgia Press, 1998
Cloth: $60.00
Pp. xvii, 658

Law firm histories are, by and large, a pretty dismal genre -- dry, bland, celebratory, unrevealing.  Typically, they tell of the firm’s frictionless progression from humble beginnings to present greatness.  They say little or nothing of internal strains; pressures from clients; financial, political, and ethical compromises; or the vast outside world of political, economic, and social realities that generated clients’ problems and fed the firm’s business.  They are essentially brochures, designed to sit on clients’ coffee tables rather than to be read.

A rare exception is Kenneth Lipartito and Joseph Pratt’s history of the Baker & Botts firm of Houston, Baker & Botts in the Development of Modern Houston (1991).  A pair of first-rate historians, given unrestricted access to the firm’s archives, showed how Baker & Botts’s expansion had ridden on the back of successive waves of regulatory growth, especially of the oil and gas industries.   The book is the rare thing in this genre: real history, not PR -- informative, interesting, richly contextual.

Vinson & Elkins, B&B’s cross-town rival, has now gone it one better.  The firm asked one of the most illustrious American historians, Harold Hyman of Rice University, to write the history of the firm and its founders.  The partners opened up their records with the instruction, "Hell . . . tell it all."  Hyman has (mostly) done exactly that.  Huge but remarkably readable, crammed with significant detail, Craftsmanship and Character sets a standard so high for law firm histories that it’s unlikely ever to be matched.  At the same time, because the book is so thoroughly and expertly done, it reveals some inherent limitations of the genre.

The Founders

The first, and markedly more interesting, half of the book is dominated by the outsize personalities of the founders, William A. Vinson and James A. Elkins.  Both were already successful lawyers, migrants to Houston from smaller Texas towns, when they formed their partnership in 1917.  Vinson was the elder and more reserved of the two.   One of ten children from "bleak" conditions of rural near-poverty, he made a fortune from investing the profits of his firm.  His contribution to the firm’s practice was largely in lobbying state legislators and regulators for favorable treatment for its oil and gas clients.  In later years, he cultivated "elegant and patrician" manners, and indulged in academic and law reform interests.  A straitlaced, "rigorously religious," intensely private family man, he was by his death in 1951 increasingly distant from the day-to-day affairs of the firm.  He left its management to Elkins, who outlived him by 21 years.

Elkins, known to all as "Judge" from a term on a county court, was an incredible character.  "Often abrasive and profane, this chronically string-pulling, taciturn, savagely competitive man" (as Hyman, who is consistently candid and judicious in his appraisals, describes him) drove himself and his associates to exhaustion in the pursuit and service of clients.  He was not only a skillful salesman of the firm to clients and a backroom fixer and deal-maker in lobbies and boardrooms, but also an expert draftsman and litigator, qualities that rarely go together in a lawyer.  Personally he was hardbitten, with a mean vindictive streak and a taste for crude practical jokes, but capable of generous care of his staff, whose medical expenses the firm paid long before it had to.  During the day, he supervised every detail of the firm’s business with an autocratic and often arbitrary hand, making all the hiring and promotion decisions himself.  At night, he ran drinking and gambling parties in his suite in Houston’s Lamar Hotel for public officials and actual or potential business clients.

The Firm

Vinson and Elkins had from the outset a clear plan for their firm’s future.   They wanted it to be big, because big firms (like the New York firms and Baker & Botts) got the big clients; and they wanted it to last.  To ensure funds for expansion and give partners an interest in long-term growth, they did not distribute the firm’s surplus but invested it on all the partners’ behalf in local businesses, especially clients of the firm.  (Like many American lawyers before them, they realized that serious money would more likely come from inside knowledge of investment opportunities than from legal fees.)  From the start, they fostered a homogeneous and loyal work force by recruiting partners from their own associates rather than hiring them laterally, and by promoting a "higher proportion" of them -- Hyman, with rare reticence, does not say how high -- to partner than their competitors did.  Their recruits were lawyers much like themselves, white Protestant men from small Texas towns (mainly Huntsville, Elkins’s own home town) and graduates of the University of Texas.   Unlike B&B, which had its lawyers specialize early, V&E preferred flexible generalists who could shift specialties and client bases as practice needs demanded.

Their main challenge was finding a durable client base.  The bigger firms (B&B, Andrews, Kurth, and national firms) had the retainer business of Big Oil.   Much like the Silicon Valley law firms that later grew rich shepherding the growth of tiny start-up high-tech industries, V&E aimed for a smaller market -- in its case, independent oil producers and wildcatters.  One of these, Pure Oil of Chicago, became the firm’s anchor client, which it created a Chicago branch office to serve.  No oil-related business was too trivial to turn down: through the 1970s, weary V&E associates were still being conscripted for the dreaded, tedious, but essential work of searching land titles for oil leases.  The firm represented many such high-risk ventures in return for shares in their stock.

Successful firms, the founders knew, had steady relationships with a bank.   V&E had no big banking clients, so they founded a bank of their own.   Elkins installed his 31-year old son as president, devoted a large share of his own work efforts to the banking business, and -- to the resentment of his law partners -- billed the firm’s time for bank work at bargain rates.  The bank, in turn, supplied venture capital to the firm’s high-risk clients, and was an unfailing spring of inside information on pending deals for the founders’ investment strategy.

Succession

V&E faced a major mid-life crisis when Vinson died in 1951.  Like any other institution dominated by a tyrannical charismatic founder, the firm had somehow to diminish Elkins’s role, find a successor, and rationalize its arrangements.  A partner aptly named Shepherd took over the administrative duties of a managing partner, modernizing the firm’s staff support, equipment, and library, and introducing (around 1957) regular daily time accounting.  "Judge," however, was still in the background making all the major decisions on hiring, promotion, and partners’ pay.   Elkins’s hiring policies unduly favored "trades" in the form of hiring relatives of business associates, and became more and more eccentric.  For much of the 1950s, he hired and promoted no one at all.

Miraculously, Elkins helped solve the problem by designating his own successor, David Searls, who transformed V&E into "a collegially run, better rationalized meritocracy."  (Another partner, Lewis White, kept "Judge" informed and soothed.)  In 1963, when the firm started hiring again, it favored high-ranking University of Texas graduates, and also expanded its recruiting to national law schools.   (483 of V&E’s lawyers have come from UT, and 114 from Houston; but also 55 from Harvard, 43 from Virginia, and 25 from Columbia.)  Searls and his successors, A. Frank Smith and J. Evans Attwell, also diversified the recruiting base, beginning to hire Jews, women, blacks, and even a gay-rights activist.  At first, the firm had problems holding onto the women and black lawyers it hired; but, it worked to create a friendly enough environment to retain them as associates, though V&E (like most other big law firms nationally) still has few women partners and (from Hyman’s data) an indeterminate number, if any, of black partners.

Like other big firms, V&E expanded geometrically in the boom legal market of the 1970s and 80s.  By the late 1970s, the firm had 286 lawyers; by the 1990s, 500.   More and more business came in from increasing state and federal regulation; and V&E lawyers began to specialize in energy, environmental, patent, admiralty, and municipal bond law; and in antitrust, securities and mass tort litigation, as well as its old fields of oil, gas, banking and insurance.  It opened branch offices in Dallas, Austin, Washington, London, and even Moscow.  In 1993, it grossed $202 million, and returned a profit per partner of $426,000.

The Firm and the Public World

Much of Hyman’s story -- perhaps too much, for the overall balance of the book -- concerns the internal evolution of the firm.  This is only natural, since a law firm’s archives are bound to be most revealing on its own history; and Hyman’s narrative skill keeps the detail interesting.  But the real payoff from having good historians like Lipartito, Pratt, and Hyman do law firm histories is that they locate the firm’s activities in the larger world.

A large part of V&E’s practice from the 1920s onward consisted of helping to construct a political and regulatory climate friendly to its major clients, the independent oil companies.  This practice called for incessant cultivation of political friends in the Texas legislature and for mastering the arcana of regulatory law and politics in the Texas Railroad Commission (TRC).  V&E's aim was a regulatory regime that would steer its clients between Scylla and Charybdis.  Scylla was the industry’s tendency to dissolve into chaotic competition among thousands of small producers fighting for oil claims under the Darwinian "rule of capture" (which allowed any surface landowner with a single rig to drill and drain as much of his neighbors’ oil he could reach).  Charybdis was a regime stabilizing cartels of the oil giants.  And any attempts to stabilize competition through "proration" or "unitization" were vulnerable to political attack by populists and to legal attack by antitrust enforcers.  V&E built its early practice on its expertise in such political-legal navigation.  Once Elkins had to warn his major client, Pure Oil, not to challenge the TRC’s regulatory authority on constitutional grounds, for fear the agency would lose its long-term capacity to stabilize the industry.

V&E welcomed the New Deal at first, because the partners thought that the National Recovery Administration would stabilize competition through regulation; but like many business lawyers, they eventually turned against federal regulation when it became clear that they could not appoint or control the regulators.  Elkins shared the general paranoia that a cabal of left-wingers and oil majors was conspiring against States' Rights.  Though Elkins’s own views drifted increasingly rightward, however, the economic health of his firm usually trumped ideology.  (He even tried, in vain, to prevent members of the firm from volunteering for war duty.)  V&E always cultivated politicians on both sides of the aisle, including populists if necessary.

The firm, nonetheless, had a strong sense of civic, philanthropic, and what Hyman aptly calls "paternalist" obligation.  Though V&E would not hire any black lawyers until the 1970s, Vinson argued and won a Supreme Court case in 1940 holding racial exclusions from Texas grand juries a violation of the Fourteenth Amendment.  V&E also helped to break the Rice University charter’s restrictions to all-white students.  In recent years, it promoted to partner a lawyer, Scott Atlas, who is nationally known for organizing pro bono representation of prisoners in criminal appeals.

Hyman’s external focus is sharpest in the book’s first half.  After Elkins death, Hyman’s interest in context seems to flag, reviving briefly for a chapter on V&E’s hiring of John Connally, who brought a lot of business to the firm -- but who also embroiled it in constant controversy, first by being indicted (though acquitted) for bribe-taking, and then by running for President.  Thereafter, Hyman’s attention is diverted to the firm’s internal life of recruitment and administration.  Perhaps, the historian’s problem is that, by the 1970s, V&E is so big and its practice so miscellaneous as to frustrate any attempt at generalization about its relations with clients and the public world.  Like law firms themselves in recent decades, the narrative becomes blander and more bureaucratic.  Still, for most of its great length, Hyman’s book is as good as law firm history is ever likely to get, and in parts that is very good indeed.

Robert W. Gordon is Johnston Professor of Law and History at Yale University.

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Cutting Edges
by Nan D. Hunter

Strangers to the Law: Gay People On Trial
Lisa Keen & Suzanne B. Goldberg
Ann Arbor, MI: University of Michigan Press, 1998
Cloth: $34.50
Pp. xi, 272

Women, Gays and the Constitution:
The Grounds for Feminism and Gay Rights in Culture and Law

David A.J. Richards
Chicago, IL: University of Chicago Press, 1998
Paper: $22.00
Pp. xiv, 531

In tone and texture, Strangers to the Law and Women, Gays and the Constitution could hardly be more different.  One is theory; one is primarily about practice.  One is full-throated prescription; the other, although hardly neutral, is primarily descriptive.  One proffers a detailed historical grounding for a new jurisprudence of the Reconstruction Amendments.  The other narrates the development of a single lawsuit, the case that culminated in the Supreme Court’s 1996 decision in Romer v. Evans.  Yet, however stark the contrast between the grand and the ground in these two books, there are both obvious and surprising areas of overlap.

To state the obvious, both books seek to unpack and analyze the stew of law and politics that feeds current judicial approaches to sexual orientation cases.  The mix has grown considerably murkier since the Court's decision in Romer, which struck down an amendment to the Colorado Constitution enacted by voter referendum.   Amendment 2 forbade any agency of state or local government from honoring a policy forbidding discrimination against gay people, unless and until the constitution was re-amended to provide otherwise.  More remarkable than the result in Romer was the Court's willingness to invalidate the provision without ever reaching beyond rational basis review.  More remarkable still was the refusal by the six-justice majority to explain why it was not barred from this result by Bowers v. Hardwick, the 1986 decision upholding Georgia's sodomy law (now, with deep irony, declared unconstitutional under the Georgia Constitution by the Georgia Supreme Court).  In Hardwick, the Court had accepted moral disapprobation of homosexuality as a sufficient ground for criminalization of some sexual acts between persons of the same sex.

Can it be rational to criminalize, but irrational to discriminate?  Are anti-gay policies an exercise in law grounded in morality, or in invidious subordination akin to race or sex discrimination?  Judges, advocates, and law professors are deep in the throes of that debate.  Each of these two books makes a significant contribution to closing the gap in equal protection analysis that still exists when sexual orientation cases arise.

Meanings of Equality

The book bigger in size and scope is Women, Gays and the Constitution.   David Richards, an NYU Law School professor and director of its program in law, philosophy and social theory, aspires to a new interpretive model for the Reconstruction Amendments.  This part of our legal legacy, Richards argues, demands more than a merely legal response, but one which is commensurate as a normative framework to "the moral ambitions" of those amendments.  Reiterating the theme from his earlier works of "a historically self-conscious community of principle," Richards posits that "[e]ach generation has the interpretive responsibility to make the best sense of the Reconstruction Amendments in its own terms of public reason."

For Richards, that task is to explain the equivalent force of claims for equality on race, gender, religious and sexual orientation grounds.  To this end, he comprehensively surveys a broad range of issues, ranging from birth control to affirmative action to the military’s "don’t ask, don’t tell" policy, bringing to each an impassioned voice imbued with rich scholarship.

Although such an approach may seem glib to originalists, Richards’s method is nothing if not historical.  The lodestar he advocates for a jurisprudence of equality is the concept of moral slavery.  Richards uses the phrase "moral slavery" to convey the core meaning of the Thirteenth and Fourteenth Amendments: a prohibition of structural injustice; not merely unequal treatment, but a pattern of abridgement of the fundamental rights associated with conscience, speech, intimate and family life, and earning a livelihood.  He derives the concept of moral slavery from a specific historical location -- abolitionist feminism -- which Richards seeks to revive and reinvigorate as the philosophical grounding for modern equality jurisprudence.

In abolitionist feminism, especially the writings of Angelina and Sarah Grimke, Richards finds a principle linking opposition to both slavery and the oppression of women (and, by extension, other examples of subordination).  That principle is the claim (radical in its day) that blacks and women were responsible moral beings and, as such, were entitled to the fullest measure of respect in every aspect of life.  Richards explains: "Moral slavery was, for the Grimke sisters, radical moral evil because of the unity among the rights it illegitimately abridged, enforcing a total moral subjugation, in central areas of rights-based moral sovereignty, to the will of another."

The Concept of "Moral Slavery"

Richards traces the ebb and flow of the radical claims of abolitionist feminism in the history of the women’s movement.  The end of Reconstruction marked the end of first wave abolitionist feminism.  What followed was the dominance of what he calls suffrage feminism, a period in which women's rights advocates distanced themselves from racial equality efforts, accepted conventions of sexual propriety, and veered into social purity movements.  With the civil rights movement as an example, modern abolitionist feminism re-emerged in the late 1960s and early 1970s.

Richards tracks the concept of moral slavery throughout this period.  He accuses those suffrage feminists who were part of social purity movements of inverting the slavery metaphor.  Social purity advocates claimed that not only was prostitution a form of slavery, but that prostitutes were immoral, in contrast to the female domestic propriety that was equated to morality.  At this point, he argues, "conventional gender roles became an unquestioned and unquestionable national political religion."

In contrast to current equal protection law, which examines whether the right being curtailed is central to the concept of ordered liberty, or whether the group in question exhibits such characteristics as a history of discrimination or political powerlessness, Richards brings to the project a more specifically cultural lens.  He characterizes the cluster of fundamental rights violated by a regime of moral slavery as "culture-creating rights."  These, he says, are "forms of moral creativity through which people authenticate themselves, the larger meaning of their lives, and the culture of public reason required for exercise of their moral powers as persons."  In short, Richards is reframing the fundamental rights branch of equal protection analysis as centered on those social practices essential for cultural visibility and identity.  Richards describes the effect from deprivation of culture-creating rights as social death for the disadvantaged group, a concept borrowed from the work of Orlando Patterson.

Richards’s central formulations -- moral slavery, culture-creating rights, and social death as enforced by law -- are major breakthrough contributions to equality jurisprudence.  They have the potential to greatly enrich judicial and scholarly interpretation in each and all of the examples that Richards addresses.  What is oddly missing, however, in this comprehensively footnoted, cross-disciplinary work, is full engagement with the body of scholarship that most directly addresses issues of identity and visibility in politics and law.  One is left wondering how Richards would place his arguments in relation to those of scholars such as Janet Halley, Reva Siegal, Kimberle Crenshaw, Ian Haney Lopez and many others who bring social constructionist and cultural theory to the analysis of rights.

Toleration and Morality

This sense of partial commitment reflects a deeper ambivalence in Richards’s project.  Alongside articulation of culture-creating rights, he calls for toleration, at times describing all his arguments as variations on the theme of toleration.  This produces an implicit clash between liberal and critical theory that is never explicated or even explained.  Perhaps Richards, whose prior scholarship has embodied liberal rights analysis, is only tentatively pushing its borders.  As a result, however, the conversation about cultural theory and law that Richards seems at moments to call for, never happens.

The other unexamined tension in the book is Richards’s own reliance on explicitly moral claims in tandem with his dismissal of anti-gay morality arguments as sectarian.   I agree with his insistence on the importance of the normative power of the Reconstruction Amendments, and I agree with his distinction between a secular moral claim for cultural equality and material rights, and a sectarian claim for imposition by the state of specific moral precepts.  But the book would be more persuasive to those not already in agreement if Richards had spelled out why these two competing notions of morality are so different.

Moreover, Richards raises the stakes considerably.  He views all discrimination in law against lesbians and gay men as stemming from religious intolerance, and thus violative of the establishment clause as well as the equal protection clause.  He analogizes homosexuality as most closely resembling a form of conscience-based dissent against religious orthodoxy.  Others have made this argument as well, but Richards develops it more extensively here than it has been elsewhere.  He also fits his analogy between religious dissent and homosexuality into his framing concept of moral slavery.  Richards argues that the origins of racism lay in religion and that the slave trade itself was facilitated by religious belief.

For Richards, the need to prioritize religious discrimination grounds as the primary basis for challenging anti-gay laws is self-evident.  For the lawyers who litigated Romer v. Evans, the issue was not so simple.  Indeed, as Strangers to the Law tells the story, nothing about the litigation of that case was simple.

Anatomy of a Lawsuit

Strangers to the Law, although less ambitious than Richards’s book, does an excellent job of the project it undertakes, which is to examine the step-by-step formulation of constitutional theory as it actually occurs, on the ground, in litigation.   While the obvious juncture with Richards’s book is subject matter, the surprising overlap is what Richards might call the interpretive project.  One sees in the litigation of Romer v. Evans a process of interpretation on the ground, less rarified certainly, but nuanced nonetheless.

Strangers to the Law was written by one observer and one participant who followed Romer v. Evans from the beginning.  Lisa Keen, an editor and writer for Washington, D.C.’s gay newspaper, won the American Bar Association’s Silver Gavel Award for her coverage of the case.   Suzanne B. Goldberg, an attorney with the Lambda Legal Defense and Education Fund in New York, a gay civil rights group, was a member of the litigation team.  Together they paint a picture of the mix of strategy and personality, insight and accident, near misses and lucky breaks that will ring true to any litigator.

Along the way, two other stories emerge.  One is the story of lawyers as translators, here the translators of doctrine into life and then, much more problematically, of life back into doctrine.  One strategy question faced early on by counsel to the gay Coloradan group challenging Amendment 2 was whether to make a fact case, rather than solely arguments on the law, as to each of the criteria for heightened scrutiny under the equal protection clause.  Would it be wise or dangerous to put into the record, and open for cross-examination and a battle of the experts, such issues as gay history, pluralist political power, and immutability?  After much debate, lead counsel Jean Dubofsky decided that she did not want to create a record for appeal that might appear later to have gaps.

As a result, a parade of scientists, social scientists, historians, and philosophers trooped to the witness stand to testify, called by both parties.  There has not been a trial before or since where such an extensive factual record on homosexuality has been compiled.  Much of the book delineates the complicating questions that arose as the lawyers marshaled evidence that would both satisfy the criteria for heightened scrutiny and reflect the lived realities of their client's lives.  One of their chief problems was the perennially unresolved issue of the permanence and/or origin of homosexuality.   Is it immutable?  Does heightened scrutiny really require immutability?   What does the term even mean?  Scholars of all political persuasions disagree, and lesbians and gay men themselves experience many different degrees of "being born this way" or having made a choice.  What's a lawyer to do?  Whichever strategy decision is made, a cascade of political consequences ensues.  For anyone teaching a course in public interest law, this book provides an excellent case study of the societal freight that any litigation decision can carry.

The second story of Strangers to the Law builds on the first.  In the accumulation of dozens of litigation strategy decisions, one watches as the law's construction of identity unfolds.  To cover the issue of immutability, plaintiffs introduce and rely on evidence of genetic causation.  Narratives of bisexual possibility silently disappear.  Binaries of sexual identity lock into place.

Those binaries form the battle lines for the "Kulturkampf," as Justice Scalia termed it, over culture-creating rights that was waged in Romer v. Evans.  For an understanding of how it happened, what it means, and why it is important, one could not do better than to read these two books.

Nan D. Hunter is Professor of Law at Brooklyn Law School and the co-author of Sexuality, Gender and the Law (Foundation Press, 1997).

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Ever True to Liberal Form
by Daniel E. Troy

Lawyer: A Life of Counsel and Controversy
Arthur L. Liman
PublicAffairs, 1998
Cloth: $30.00
Pp. 384

For more than three decades before he died of cancer in 1997, Arthur Liman was one of New York’s premier litigators and corporate counselors.  Among his clients were financier Michael Milken, CBS founder Bill Paley, Time/Warner CEO Steve Ross, and -- most famously -- Senate Democrats in the Iran-Contra investigation.   Liman also led investigations into the 1971 Attica Prison uprising in upstate New York, and into the operation of the New York City medical examiner’s office in 1985.   In addition, Liman somehow found time to head one of the city’s most prestigious firms: Paul, Weiss, Rifkind, Wharton & Garrison.

Although Liman’s autobiography is occasionally riveting in its description of his cases and clients, the book is limited by Liman’s apparent inability, common to so many autobiographers, to think outside the conventions that had governed his life.   This failure of introspection is particularly noticeable in Liman’s discussion of his politics, which are remarkable primarily because of how conventional -- indeed cliche -- they are.  Liman was a quintessential New York Jewish liberal.  Not even the eventual widespread acceptance of the evils of Communism seems to have caused him to reconsider liberal orthodoxy for one moment.

Liman declares himself in favor of affirmative action, increased legal services for poor people, and prison reform.  He is, predictably, against the death penalty, long prison sentences, and the Reagan Administration.  Speaking about the Iran-Contra affair, Liman maintains that "the disdain expressed by members of the Reagan administration for the rules of law and constitutional procedure during this sorry affair may well have encouraged the widespread disdain for government that has become fashionable in the 1990s."

This statement, like the book itself, fails to acknowledge the failure of the Great Society and other big government programs to eradicate poverty and otherwise bring utopia, as well as the substantial negative effects those efforts engendered.  It ignores the lessons learned from Communism's failure, and is oblivious to the rise of the libertarian critique of government beginning in the 1940s.  And it ignores the rise of conservatism culminating in the Reagan Revolution.  In a world where even Bill Clinton has acknowledged that "the era of big government is over," to blame Iran-Contra for the American people’s disaffection with government blinks reality.   Only one wholly immersed in New York liberalism, as Arthur Liman was, could manifest such ignorance of the causes underlying the American people’s dissatisfaction with government.

Over the long run, however, Liman’s autobiography will be most valuable to future historians in their study of Iran-Contra, in part because it includes entries from a diary Liman kept during his service as chief counsel to the Senate’s Select Committee.   Liman is convinced that National Security Advisor Admiral John Poindexter lied to save President Reagan from certain impeachment, but he also harshly condemns independent counsel Judge Lawrence Walsh.  Liman portrays Walsh as disengaged, ensuring that his prosecution would be fatally tainted by failing incompetently to keep his cooperating witnesses from watching Oliver North's and Poindexter’s immunized testimony on television.  He criticizes Walsh for trying "to make criminal cases out of political offenses, such as the violation of the Boland amendment."   He also upbraids Walsh for viewing his mandate as pursuing "criminal charges by every possible theory."

Of course, Walsh is not the only one whose reputation was harmed by his work in Iran-Contra.  Conventional wisdom is that Liman also did not acquit himself well as counsel to the Senate Select Committee.  He is generally considered a non-telegenic New Yorker who was taken to the cleaners by Oliver North.  Liman tries hard to defend his actions, claiming that he used North’s testimony "to emphasize that Iran-Contra had never been the escapade of a single, out-of-control loose cannon of a Marine lieutenant colonel, but instead a policy, and one that, whichever side one was on, went all the way to the President."

Clearly, when reflecting on his Iran-Contra service, Liman consoled himself with the thought that he had exposed the facts, particularly what he called the "privatizing" of CIA operations.  He proudly notes that:

[M]y Senate committee concluded that the President, at the very least, bore responsibility for creating a climate at the White House in which disdain for the law had flourished.  Noting that, under the Constitution, the President is charged with the duty to take care that the laws are faithfully executed, we concluded that he had defaulted in that duty.

Given this conclusion, one might expect that Liman would have, at the very least, had some mildly critical things to say about the current President's attitude towards the law and truth.  (In fairness to Liman, he died before the Lewinsky mess became public.)   Instead, Liman exonerates Clinton of all charges and, true to liberal form, ends his discussion of Iran-Contra by attacking current independent counsel Judge Kenneth Starr, whom he compares with Judge Walsh.  Liman’s inability to recognize that his critique of the Reagan administration applies as well to the self-proclaimed "most ethical administration in history" exemplifies a lack of perspective that makes the book an ultimately disappointing read.

Daniel E. Troy is a partner at the Washington, D.C. firm of Wiley, Rein & Fielding, where he practices constitutional and appellate litigation.  He is also an associate scholar at the American Enterprise Institute.  From 1984-1987, Mr. Troy was an associate at Paul, Weiss, Rifkind, Wharton & Garrison.

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Still the Imperial Presidency?
by William C. Banks

Presidential Defiance of "Unconstitutional" Laws:
Reviving the Royal Prerogative

Christopher N. May
Westport, CT; Greenwood Press, 1998
Cloth: $55.00
Pp. ix, 215

The Starr investigation and subsequent impeachment of President Clinton have given all of us something to talk about.  Beyond the day-to-day drama of the impeachment proceedings and their impact on Bill Clinton, some have fretted that the Congress has stumbled upon a way to weaken the presidency and regain some lost clout.  According to this line of thinking, members of Congress may be so emboldened to believe that, armed with independent counsels, it is possible to bring to his knees through the now credible threat of impeachment any president whose actions are contrary to congressional interests.

In Presidential Defiance of "Unconstitutional" Laws, Professor Christopher May of the Loyola Law School reminds us that, notwithstanding Monica Lewinsky, it is the presidency whose powers have continued to ascend in recent decades.  Updating and expanding an earlier law review article, May documents that presidents have, with increasing frequency since the mid-1970s, claimed the power simply to ignore any law that, in their view, is unconstitutional.  May sees the disregard of statutory provisions as part of a pattern where recent presidents have sought expanded authority in various spheres, including national security affairs, impoundment, and executive privilege.  Subject to limited exceptions, May argues that this practice effectively confers on the president a de facto and absolute item veto (Congress has no opportunity to override the president’s excision), and violates the president’s obligation to "take Care that the Laws be faithfully executed."   The practice is thus broader than the limited veto of fiscal measures found unconstitutional by the Supreme Court in its review of the 1996 Line Item Veto Act.

The History

May’s arguments are persuasive and his work is richly documented.  Chapters on English history and the constitutional framing constitute Part I of his book.   They are well written and supply useful reminders of the struggles between kings and Parliaments in England over the royal prerogative and of the Framers’ rejection of an absolute presidential veto of objectionable laws.  Dating from the 14th Century, the royal prerogative power was later defined by John Locke as the king’s "power to act according the discretion, for the publick good, without the prescription of the Law, and sometimes even against it."  At its extreme, the Crown claimed that the prerogative included the power to make laws and the power to set them aside.  As the Parliament began to use its powers to condition spending sought by the Crown on the executive’s agreement to issue statutes favored by Parliament, the Crown developed the practice of reneging on its promises by suspending or dispensing with the laws after receiving the money promised.  Suspension nullified a statute, while the dispensing power made specific exemptions to the act.

By the last half of the 17th Century, the Stuart kings brought the struggles with Parliament to a head.  Monarchs claimed that the prerogative was a matter of "divine right" and thus could not be restricted by Parliament in any way.   Abuses, particularly those suspensions disfavoring religious dissenters, lead to the abdication of King James II in the Glorious Revolution of 1688 and the constitutionalization of the Bill of Rights of 1689, which explicitly abolished the powers of suspending and dispensing with the laws.  The Bill of Rights made no exception for cases where the Crown claimed that the law was unconstitutional.

At the Constitutional Convention, James Madison and James Wilson advocated an absolute presidential veto over unconstitutional laws, although Madison apparently retreated when he realized that provisions for a more powerful executive might further compromise the chances for ratification.  Even the qualified veto was controversial at the Convention, leading the delegates to vote to reduce from three-fourths to two-thirds the majority needed to override a presidential veto.   According to May, the president’s duty to "faithfully" execute the laws, codified in the Take Care Clause of Article II, "is a succinct and all-inclusive command" for preventing the president from employing any of the devices used by the crown to avoid fulfilling the objectives of Parliament.

Others have argued that the Take Care Clause duty does not apply if the president believes that a law is unconstitutional.  The duty to faithfully execute is thus modified by the Supremacy Clause, which states that only those "Laws of the United States . . . made in Pursuance of" the Constitution are supreme.  Laws that conflict with the Constitution are not "laws" within the Take Care Clause.   The president is not only not obligated to enforce them; if he does, he may violate his oath to "preserve, protect and defend the Constitution."  May answers that the Supremacy Clause was carefully addressed only to state judges and to the supremacy of federal over state law.  The Take Care Clause purposefully does not track the Supremacy Clause distinction between "laws of the United States" and laws made "in pursuance of" the Constitution.  Finally, the Oath Clause does not excuse the president from other constitutional obligations, including those imposed by the Take Care Clause.  May opines that the difference in wording between the Take Care and Supremacy Clauses may reflect the Framers’ awareness that judicial review in the Supreme Court would likely follow a state judge’s failure to enforce federal law, while a president’s disobedience of a supposedly unconstitutional law may well escape judicial review altogether.

May gives extensive treatment to modern arguments that presidents must have the power to object to portions of legislation as compensation for emerging practices in Congress that have undermined the president’s veto power.  The offensive practices are the bundling of many separate appropriations or unrelated substantive provisions in an omnibus bill, and the tacking of nongermane substantive riders to an appropriations bill.   Because the president is practically unable to block provisions he believes are unconstitutional if the larger bill contains essential items, the response has increasingly been to unbundle the bill by signing it into law while objecting on constitutional grounds to select provisions of the bill in the president’s signing statement.  As Professor May effectively demonstrates, the Framers were well aware of bundling and omnibus legislation, and chose neither to prohibit the practices nor expand the president’s veto power.  In addition, but for a lone statement by James Wilson before the Pennsylvania ratifying convention, there is no evidence that the Framers intended that the president would enjoy the power given to the federal courts to refuse to enforce unconstitutional laws.  The president’s defenses against unconstitutional laws are imperfect, but they are in practice quite formidable: his advocacy in the legislative process, the qualified veto and the threat to employ it, and the possibility of overturning an offensive measure in the federal courts, either by actively seeking judicial review or by refusing to defend a statute in court and arguing that the law is unconstitutional.

Presidential Practice

Part II concerns the presidential practice through 1981, with a selective update through 1996.  Through an examination of presidential vetoes, signing statements, and objections to previously enacted laws, May constructs a unique empirical record of presidential defiance.  Of 462 presidential vetoes of public bills (not including pocket vetoes or vetoes of private bills), twenty-seven of eighty-seven overridden vetoes occurred where the president’s opposition was based in whole or in part on constitutional grounds.  May assesses each case and convincingly concludes that only once in twenty-seven times did the president refuse to honor the objectionable law.   That occasion, Andrew Johnson's alleged defiance of the Tenure of Office Act, precipitated his impeachment. Moreover, as May shows, Johnson’s firing of secretary of war Edwin Stanton was, in the reasonable view of the president, not in violation of the Act.   Stanton was a holdover from Lincoln’s cabinet, and the Act purported to limit the removal of such officials "during the term of the President by whom they have been appointed."  While the House prosecutors of his impeachment trial argued that, because Johnson was serving out Lincoln’s term, Stanton was covered by the act, Stanton was appointed during Lincoln’s first term and Johnson could fairly claim that, notwithstanding his views of the act’s unconstitutionality, the firing of Stanton was not affected by the law.

May explains that Johnson’s lawyers anticipated the uncertain outcome of the statutory arguments over the Tenure of Office Act, and thus also argued in the Senate impeachment trial that a president may sometimes ignore an unconstitutional law where he seeks to have the issue resolved by the courts.  In light of his acquittal in the Senate, May opines that the Senate may have been moved to accept his claim that the president may defy a law if to do so is the only way to test its constitutionality in court.  However, May also argues, based on the Johnson experience, that a president "must make every effort to ensure that the issue is presented to the federal courts for final resolution."  Otherwise, "the president could routinely invoke the Constitution as a means of suspending laws that he opposes on policy grounds."

Signing statements became common only in the Truman presidency.  By the first term of Bill Clinton, a signing statement accompanied one in five laws.  Absent the item veto, signing statements have emerged as the favored method for asserting constitutional objections to acts of Congress.  Of the 101 statutory provisions challenged by presidents in signing statements through 1981, the president disregarded twelve.  Of the twelve, seven occurred between 1974 and 1981, suggesting that the practice of noncompliance through signing statement is very recent.  The dubious award for most defiant president goes to Jimmy Carter, who refused to comply with five laws through signing statement objections.  May parses the cases according to his view that it may be proper for the president to defy some laws in order to set up judicial review.  He concludes that, in seven of the twelve instances, the president’s action amounted to an absolute veto, either because no one would have standing to challenge the constitutional validity of the law, or because the president’s actions foreclosed review that might otherwise have been available.  Many will recall the example of the congressional protest against President Carter’s "complete and unconditional pardon" of Vietnam-era draft resisters in 1977.  Congress attached a rider to an appropriation, forbidding the Justice Department from using any funds to implement the pardon.  The Carter Administration ignored the restriction and processed immigration re-entry for aliens who had been pardoned.  By his actions, Carter precluded judicial review of the spending restriction and of his action ignoring it.  A suit to enjoin the pardon was dismissed for lack of standing, as would have been any suit filed to challenge ignoring the funding restriction.  Had Carter complied with the restriction, the aliens pardoned would have had standing to challenge the funding restriction as an unconstitutional interference with the pardon.  On seven other occasions, presidents refused to comply with allegedly unconstitutional laws adopted during a prior administration.

May wraps up his assessment of the practice by concluding that presidential noncompliance is much more rhetorical than real, but that actual defiance has occurred more frequently in recent decades, reaching "significant proportions" since the mid-1970s.  That there were no incidents of presidential noncompliance until more than 70 years after the Constitution was ratified undermines originalist arguments for the presidential prerogative, while the spotty record of presidential noncompliance is made up of instances "too few and far between" to satisfy Justice Frankfurter’s suggestion that "a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned . . . may be treated as a gloss on ‘executive Power’ vested in the President."  Apart from the infrequency of the practice, it cannot fairly be maintained that Congress has regularly acquiesced in presidential noncompliance.  Consider the Andrew Johnson impeachment following his alleged failure to obey the Tenure of Office Act.  Thus, recent claims by the Clinton Administration Office of Legal Counsel that a "consistent and substantial executive practice" supports presidential noncompliance with laws he views as unconstitutional do not wash -- only two of twelve incidents cited by OLC are likely cases where the president did not enforce the law.

Limiting Presidential Defiance

May concludes that neither original history nor practice supports a presidential claim to ignore supposedly unconstitutional laws.  The Supreme Court has not directly addressed the issue, although it has said in another context that a president does not possess a general "dispensing power" that allows him to ignore the law.   May gives ground to noncompliance only where "disregarding an allegedly unconstitutional law . . . is the only means of creating a ‘case or controversy’ through which judicial review of that law may occur," and only if there is "no other avenue for securing judicial review."  This narrow presidential defiance "would serve as a safeguard against legislative tyranny" and, because judicial review would immediately follow, the "specter of executive autocracy" is not raised.  May would permit noncompliance only if four proposed conditions are satisfied: (1) defiance must be the only way to bring the constitutionality of the law before the courts; (2) the supposed unconstitutionality "must be clearly indicated by the text of the Constitution, the intent of the Founders, or prior rulings of the Supreme Court;" (3) all other means of changing the law through the legislative process must have been exhausted; and (4) the president must take "all possible steps" to secure judicial review.

Against these standards, May correctly concludes that none of the twenty cases of presidential defiance reviewed was proper.  Judicial review occurred in only two instances, and in neither case -- Myers v. United States (1926) and Humphrey’s Executor v. United States (1935), the bookend decisions on presidential removal power -- was the law in question clearly unconstitutional.  Thus, the trend of recent presidents to claim, as President Reagan did in defying the Competition in Contracting Act, that the president "has a constitutional duty to protect the Presidency from encroachment by other branches," should be credited only where the four conditions are met.  Most signing statement objections are phrased in such terms, where the president is hardly a disinterested observer of constitutional processes.

As for the future, Professor May’s prescription supplies a fair compromise.   The president is neither free to disregard the laws he does not like, nor bound to enforce those that are patently unconstitutional.  The same Take Care Clause and Supremacy Clause considerations that drive the general enforcement obligation support the narrow opportunity for nonenforcement.  Although May’s Supremacy Clause interpretation is partly correct -- the second half does remind state judges that they are bound by the Constitution -- the first half declares the Constitution the Supreme Law and is unqualified and not dependent on the second half.  Because the Take Care Clause charges the president with taking care that all the laws are faithfully executed, the president has the same duty as Congress to decide the constitutionality of laws.   When a law conflicts with the Constitution, he can enforce only one of the laws, and the Supremacy Clause requires that he enforce the Constitution by refusing to enforce or defend the unconstitutional statute.  The president’s veto is an insufficient defense because it can be overridden, necessitating judicial review of the statute to prevent against tyranny by the legislature.

Thus, either a third-party challenge to the statute or judicial review triggered by the president’s refusal to enforce the offensive provision may sometimes by appropriate.   A problem with May’s theory, however, is that formidable bars to justiciability -- doctrines of standing, ripeness, and political question -- may thwart judicial review of presidential noncompliance with laws and thus insulate potentially unconstitutional action by the president.  For example, in Raines v. Byrd (1997), the Supreme Court refused to decide the constitutionality of the Line Item Veto Act in a lawsuit brought by members of Congress.  The Court concluded that the institutional injury asserted by the plaintiffs did not supply the "personal stake" required to establish an Article III case or controversy.   May’s scheme calls for the opposite -- liberalization of congressional standing doctrines and related barriers to judicial review of presidential nonenforcement.   Although the dispute concerned an attempt to confer power on the president at the expense of Congress, Raines v. Byrd calls into question whether any lawsuit brought by a member of Congress will be heard by the federal courts.  Given increasing presidential defiance and obstacles to obtaining judicial review, it will take more than Monica Lewinsky to derail the American presidency.

William C. Banks is the Laura J. and L. Douglas Meredith Professor at Syracuse University College of Law.   He has published extensively on national security and appropriations law topics, including National Security Law and the Power of the Purse (Oxford University Press, 1994); "Pulling the Purse Strings of the Commander in Chief," 80 University of Virginia Law Review 833 (1994); and "From Vietnam to Desert Shield: The Commander in Chief’s Spending Power," 81 Iowa Law Review 79 (1995) (all with Peter Raven-Hansen).

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Religious Freedom: The Founders vs. Judge Noonan
by Thomas G. West

The Lustre of Our Country: The American Experience of Religious Freedom
John T. Noonan, Jr.
Berkeley, CA: University of California Press, 1998
Cloth: $35.00
Pp. 436

Judge John T. Noonan's (9th Circuit Court of Appeals) book is a lively -- sometimes whimsical, always learned -- but ultimately flawed celebration of religious liberty in America.

The book presents its argument in two ways.  The first is to narrate episodes in the history of religious liberty and oppression in the past, including the recent past.   The second is to explain the concept of religious liberty itself.  Noonan does a good job with the historical part of his argument.  It is the best part of the book.  The analysis of religious liberty, however, is lacking.

Judge Noonan’s vivid stories remind us that religious bigotry in government is not the only problem.  Yes, government can persecute the heterodox in the name of religion, as in pre-1945 Japan (oppression of Christians) and pre-1800 Europe (oppression of Protestants and other heretics by Catholics, and vice-versa).  But government can also persecute believers in the name of irreligion or atheism, as in the Soviet Union and pre-1900 France.  Many of the stories that Noonan tells are unknown to all but specialists in colonial American, French, Japanese, and Russian-Soviet history.  Here he provides a useful service.

Noonan vs. Madison

The most challenging parts of Judge Noonan’s book are his discussions of the meaning of religious liberty.  Noonan says he follows James Madison.  He chooses this Founder because Madison comes closer than the others to Noonan’s own position on religious liberty.  He especially approves of Madison’s apparent opposition to government support of religion under any circumstances.

Noonan thinks Madison grounds religious liberty in faith, not reason.  Madison supposedly believes "that God in us speaks to us" through conscience.   "The faith that there is a governing God is fundamental."  That faith, Noonan claims, leads Madison to conclude that law must not interfere with whatever a man’s conscience tells him is his religious duty.

Noonan mistakes Madison’s position.  Like the other leading Founders, Madison was careful to argue from principles discovered by reason, rather than derived from his own or anyone else’s personal faith.  Besides, Madison is far from believing in the conscience in Noonan’s sense.  What would Madison have said if someone (say, a Mormon in 1890) had said that his conscience told him that he must have thirty wives?   What if conscience told a woman that she must burn herself to death when her husband dies (the Hindu practice of suttee)?

The answer is obvious.  Madison would have said that reason can see that the family, defined as a married man and woman and their children, is indispensable to a free society.  Madison would have said that it is unreasonable for anyone to claim that there is a religious obligation to commit suicide for the sake of a lost loved one.   Madison never argued, or even implied, that there is a free-exercise natural or constitutional right to disobey generally applicable law.  Nor did anyone in the founding generation.  The military exemptions for Quakers had to be provided by federal and state law precisely because it was not implied in the right of free exercise of religion.

The idea of an autonomous conscience, unbound by reason, was rejected by the American Founders.  It was rejected also by most Christians of the founding generation, who believed that "A revelation, pretending to be from God, that contradicts any part of natural law, ought immediately to be rejected as an imposture" (Samuel West, A Sermon, 1776).  For founding-era Christians, not only revelation but "reason . . . is the voice of God" (Samuel West).  That was their foundation for natural law, natural rights, and therefore for constitutional and statute law.  For Noonan, conscience is the voice of God.  That is his faith, and his foundation.  It is Noonan’s Second Commandment.  (Yes, this Ninth Circuit federal judge issues Commandments, exactly Ten of them, at the end of his book.)

Judge Noonan is tone-deaf to Madison’s reliance on reason.  He quotes Madison’s note that religious liberty is "one of the natural rights."   Noonan remarks: "the emphasis on ‘natural’ stressing its talismanic importance."  "Talismanic" means "possessing magical powers."  What Madison regarded as reason turns into irrational superstition for Noonan.  Apparently Noonan agrees with Mark Tushnet, Robert Bork, and other luminaries who reject natural right.  Tushnet, for example, says that believing in natural rights is like believing in ghosts.

I won’t rehearse Philip Hamburger's 1992 demolition ("A Constitutional Right of Religious Exemption: An Historical Perspective," George Washington Law Review (1992), vol. 60, p. 915) of Michael McConnell, who agrees with Noonan that the right of free exercise of religion means that there is a right to disobey the law.  Instead, let us consider Madison’s argument from reason for religious liberty.

Madison’s Rational Argument for Religious Liberty

Why is religious liberty a right?  Because it is something that everyone rightly possesses, namely his own thoughts and convictions.  Here is Madison, from his article on "Property," 1792:

"In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.   In the former sense, a man’s land, or merchandize, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.

He has a property very dear to him in the safety and liberty of his person.

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.  In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights."

In sum: the rational basis of what Madison called "the rights of conscience" is the fact that by nature we own ourselves.  Nature is not a "talismanic" term carrying supernatural properties.  It is reality.   We are not owned by others.  Human beings are not born slaves.  They are rightfully free.  Our hands and muscles are our own.  So are our minds.   Just as we have a right to the fruits of our labor, so also we have a right to the thoughts of our minds, our opinions and faith about the highest things, about God, and to the "profession and practice dictated by them."

Religious Liberty, Not License

The Madisonian passage just quoted sounds quite "libertarian" in today’s terms.  But Madison was no libertarian.  Once it is understood why he was not, the Founders’ and almost all earlier Americans’ view of religious liberty is easily grasped.

There can be no legal limit on the right to hold any opinion about God (or anything else) that one might wish.  That is because our private thoughts, and the actions they lead us to, are our own, and no one can take them away.  For this reason the New Hampshire Constitution of 1792 said, "Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them.  Of this kind are the rights of conscience."

But there can and should be limits on what actions we perform with our "property," whether property be physical possessions or mental convictions.   The limits are set by law.  The criterion is injury to another person’s life, liberty, or property, or to the society itself.  Injury is wrong because people have rights to the free, noninjurious use of their own bodies and minds.

I have a right to own a car.  But if I use that car to run over someone who annoys me, the law should hold me accountable.

I have a right to keep and bear arms.  But if I use my gun to kill an innocent person, the law should hold me accountable.

I have a right to believe what I wish about God.  But if my belief leads me to murder my children as a sacrifice to "God," the law should hold me accountable.

Government Support of Morality

Further, in the opinion of everyone in the founding era, government has an obligation not only to discourage or punish physical injury but also injury to the moral conditions of a free society.  Madison explains in Federalist 55: if men do not have sufficient virtue to restrain themselves, "nothing less than the chains of despotism can restrain them from destroying and devouring one another."

Judge Noonan seems mystified by the earlier view that government has a rightful interest in morality.  For example, here is how he describes the Supreme Court’s ruling in the Mormon cases (1878, 1890): "conduct in accord with one’s idea of one’s obligation to God could be federally proscribed if the conduct conflicted with morality as conventionally understood by Christians.  Specifically, polygamy. . . ."  Noonan thinks laws against polygamy amount to an establishment of religion, an imposition of one religion on another.   He calls government regulation of sexual morality "the submission of the entire sexual life of the Americans to commandments derived from Christian scripture."

Since we Americans seem to have lost our ability to reason on these subjects, let me explain the earlier understanding of government regulation of sex in the simplest terms.

1. Society needs children for the sake of its perpetuation.  Therefore it must favor heterosexual sex and discourage what one might call nonproductive sex (e.g. homosexuality) so that children will continue to be born in large numbers.

2. But if children are to thrive, they need someone to love and care and provide for them.  Long experience has shown that the child’s biological mother and father are likely to perform these tasks best.  Why?  Because parents love their children as extensions of themselves, and social workers, however many degrees they may have, do not.  Therefore (and following on the first point) the laws and customs of society ought to encourage the connection between sex, love, marriage, and babies.

3. In a free society, the powerful should not be permitted to monopolize the most attractive sexual partners.  One to a customer!  Polygamy is historically associated with despotism, as the Supreme Court, Francis Lieber, Hegel, and law professor Maura I. Strassberg all agree.  Therefore beautiful women and wealthy and prominent men are limited to one partner each in marriage.

4. And once you choose, you don’t get to change your mind.  For the good of the children, and of the partner who would be abandoned too late to remarry, or who would be deprived of access to his children, marriage was supposed to be like the Roach Motel, at least to this extent: you check in, but you don’t check out.

These points were understood if not fully articulated in the Mormon cases.  The Supreme Court spoke of "a return to barbarism" if polygamy were to be permitted (The Late Corporation of the LDS Church v. U.S., 136 U.S. 1, 49 (1890)).  This repeated the Republican Party platform of 1856, which spoke of "those twin relics of barbarism, polygamy and slavery."  Noonan, however, sees no rational concern for civilization, but only a bigoted imposition of Christian sexual mores.

This is one side of Judge Noonan’s misunderstanding of the Founders’ conception of the limits on religious liberty.

Government Support of Religion

The other side concerns government support for religion.  Noonan thinks support in any form amounts to establishment and violates the free exercise rights of those whose religion is not supported.

However, George Washington spoke for almost all the Founders when he said: "Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. . . .  And let us with caution indulge the supposition that morality can be maintained without religion. . . .  [R]eason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle" (Farewell Address, 1796).

Why does Washington believe religion has a positive influence on morality?   Because it teaches people that God’s law requires them to restrain themselves, and that if they do not, God will punish them.

To Washington it was obvious that government must promote religion.  That is why several states taxed citizens to support ministers.  That is why every state promoted religion in various ways short of official establishment.  That is why the federal Northwest Ordinance, passed in the same year as the First Amendment, said: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."  Of course the religion that government almost always supported was not "religion in general" but some version of Protestantism.

Judge Noonan’s book has the merit of acknowledging frankly the long tradition, not yet dead, of government support for religion.  Noonan invents a character, "Angelique" de Tocqueville, to correct her famous brother’s silence about the multitude of ways that church and state were and are intertwined in America.  In Tocqueville’s pre-Civil War America, Massachusetts taxpayers were still funding the salaries of Protestant ministers in every town.  Even today government endorses religious holidays, grants tax exemptions to churches, pays for chaplains, prays on ceremonial occasions, and prints "In God We Trust" on currency.

Noonan thinks that government should not be in the business of supporting religion.   Yet he cannot help but notice the positive role religion has played in American history.  He devotes a whole chapter to Theodore Parker, a Boston preacher whose religious fervor gave strong impetus to the antislavery crusade that the Civil War eventually became.

Judge Noonan is no ACLU liberal.  He does not worry as much as one might expect about the contradiction he perceives between America’s principles (no government support of religion) and practice (extensive support).  But instead of discovering, or rather rediscovering, the principle by which free exercise is reconciled with government support of morality and religion, Noonan capitulates.  He denies that there can be such a principle.  He flees into vagueness.  He says we should abandon Jefferson’s "wall of separation between church and state" metaphor and replace it with "the sponge" or even "semiconductor" of separation.  Noonan speaks of his faith in the process by which the doctrine of religious liberty continues to evolve.

Noonan’s Faith

Ultimately, Noonan believes in Conscience and is untroubled by what he takes to be our inconsistencies because he believes in Progress.  As a young man, he tells us in his autobiographical first chapter, he had believed in the eternal truth of the moral teachings of the Catholic church.  His study of the evolution of church doctrine on usury changed his mind.  "Plainly, the rule, proclaimed as ordained by God as law, had altered with the centuries. . . .  No rule was fixed forever. . . .   Mature reflection saw both progress and stability."

Noonan has faith in Progress.  He is a Progressive.  But if no rule is fixed forever, what then is the ground of law?  Is it History?  Does Noonan really believe that God or Being is working through history such that all change is for the better?  Don’t we need an argument from reason precisely here?

Is it not time to abandon this touching but irrational faith in Progress and History?

Selected References

Thomas G. West, "Religious Liberty: The View from the Founding," in Daniel Palm, ed., On Faith and Free Government (Rowman & Littlefield, 1997).   Harry V. Jaffa, "The American Founding as the Best Regime: The Bonding of Civil and Religious Liberty."   The West and Jaffa articles are on the Claremont Institute website (search for "religious liberty").   John T. Noonan, Jr., ed., The Believer and the Powers that Are (Macmillan, 1987), has useful documents, especially from early American history.   Another collection, which has the Samuel West sermon quoted above, is Charles Hyneman and Donald Lutz, American Political Writing During the Founding Era (Liberty Press, 1983).

Thomas G. West is a Senior Fellow of the Claremont Institute and Professor of Politics at the University of Dallas.  He is the author of Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Rowman & Littlefield, 1997).

Editors’ Note: Other reviews of Judge Noonan’s The Lustre of Our Country include John McGreevy, Commonweal, July 17, 1998, p. 20; Richard Wightman Fox, New York Times, July 5, 1998, sect. 7, p. 7; and Richard Neuhaus, The Weekly Standard, May 4, 1998, p. 31.

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Talkback

Where you have the last word...

A most excellent review. Professor West is to be applauded for explaining, clearly and simply, what the Founders believed and what Progressives like Noonan believe -- and why they are incompatible beliefs.

Dean Clancy, VA

I believe Dr. West has correctly identified some serious problems with Noonan's book. It is frightening to think we have Federal judges who have abandoned reason as a principle, especially as a basis for our rights as citizens.

Brian P Eastin, TX

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