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They Have Eyes With Which to Read but Readeth Not

One has the impression that research by today’s government lawyers consists of tapping keywords into databases compiled since 1992.

The foolish Justice Department lawsuit seeking an injunction against “all of [Texas’] officers, employees, and agents, including private parties who would bring suit” is an exercise in public relations, not law.

Such a “John Doe” injunction was granted in the Danbury Hatters case, Loewe v. Lawlor, in 1908. Further such injunctions were forbidden by Section 19 of the Clayton Antitrust Act in 1913, however, now Rule 65(d)(2) of the Federal Rules of Civil Procedure. As Judge Learned Hand explained in 1930, “no court can make a decree that will bind anyone but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. It is not vested with sovereign power to declare conduct unlawful, its jurisdiction is limited to those over whom it gets personal service and who therefore can have their day in court.”

The federal complaint is a disgrace to the 13 government lawyers whose signatures appear upon it. Attorney General Garland was wise to omit his own, though endorsing the complaint. It is astonishing that none among them appeared to be familiar with the applicable Rule of Civil Procedure, or the history that underlay it. But in today’s legal world, it is not surprising.

Equally extraordinary is the federal effort to enjoin state laws preventing local school districts from requiring the masking of students against Covid-19. While the states concerned would have done better to let this question be decided at the school district or building level, the federal government possesses no special wisdom or authority in this field. Its claim that such statutes impair the rights of disabled students verges on the absurd. Both the Trump and Biden administrations have wisely left jurisdiction over lockdowns to the states, federal authority being absent. The suit is an exercise in virtue-signaling, rendered even more ridiculous by the decision of authorities in England not to mandate the wearing of masks by schoolchildren because of pediatric advice on the impairment of their social development.

In a recent TAC article, I lamented the fact that the recent litigation on evictions, and the moratoria decreed by both the Trump and Biden administrations, completely overlooked the prior case law dealing with eviction and foreclosure moratoria, which required that even in dire emergencies the measures be clearly authorized by the legislature, not merely the executive, and that compensation at least equal to the landlord or mortgagee’s incurred costs be provided, which it was not. The recent moratoria merely expressed the pious hope that tenants would pay what they could, and an inadequate stream of substitute government payments was provided.

One gains the impression that research by today’s lawyers consists of tapping keywords into databases compiled since 1992. None of the recent cases cite the substantial literature, American and British, dealing with emergency powers, including Corwin’s Total War and the Constitution, Rossiter’s Constitutional Dictatorship, Weiner’s A Practical Manual of Martial Law, Chief Justice Rehnquist’s All the Laws But One, or the extensive discussion of each of the relevant cases in the volumes of the Oliver Wendell Holmes Devise History of the Supreme Court.

One also senses that the federal lawyers care nothing for the value of the horizontal division of powers between nation and states in limiting and localizing political conflicts. Indeed, one senses that on being presented with a copy of the federal Constitution, they each and all fell asleep before reaching Article I, Section 1, which reads, in case you in common with virtually all the nation’s lawyers have forgotten, “All legislative powers herein granted shall be vested in a Congress of the United States.” They have eyes with which to read, but readeth not.

It is to be hoped that the pending Dobbs case will take a long step to removing the abortion issue from the exclusive hands of lawyers and returning it to the more socially representative state legislatures, where it belongs. Controversial laws such as the recent Texas law are there subject to repeal or alteration after a year or two. Roe v. Wade and Doe v. Bolton have thus far endured, despite the complete absence of a social consensus or even compromise, for 49 years.

The Texas law, and the federal lawsuit, perfectly illustrate the deformation in American political discourse wrought since the abortion question was judicialized and federalized, and the indifference of too many of today’s lawyers to the commands of the law as an autonomous discipline. The existing case law, by such as Holmes, Hughes, Brandeis, and Learned Hand, puts paid to the federal nonsensical claims.

George Liebmann is the president of the Library Company of the Baltimore Bar and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books).

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