{"id":169923,"date":"2026-02-16T12:12:00","date_gmt":"2026-02-16T20:12:00","guid":{"rendered":"https:\/\/lukeford.net\/blog\/?p=169923"},"modified":"2026-02-16T16:36:11","modified_gmt":"2026-02-17T00:36:11","slug":"stewards-of-democracy-law-as-public-profession-1999-2","status":"publish","type":"post","link":"https:\/\/lukeford.net\/blog\/?p=169923","title":{"rendered":"Stewards Of Democracy: Law As Public Profession (1999)"},"content":{"rendered":"

Law professor Paul D. Carrington wrote<\/a>:<\/p>\n

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* American law in the last half-century has been increasingly disdainful of the expressed wishes and expectations of the citizens it purports to serve.<\/p>\n

* Robert Wiebe, for example, has identified World War II as marking the general ascendancy to controlling power of what he denotes as the “national class,” a ruling class including many lawyers and most judges and law teachers, and, of course, much of the media. The “national class” of lawyers identifies itself by credentials, mostly academic credentials. Its members tend to lack connections to and sympathy for an increasingly alienated underclass who have ceased to see themselves as participants in government. Members of this “national class” are prone to disdain the messy moral compromises of elective politics, perhaps especially local politics, and hence envision constitutional adjudication as the appropriate means of resolving conflicts of moral import.<\/p><\/blockquote>\n

Written with AI: <\/p>\n

The Legal Academy and the National Class<\/strong><\/p>\n

The legal landscape today reflects an intensification of the trends Paul Carrington identified more than three decades ago. The divide between a nationally oriented professional elite and the local citizenry remains the central fault line in American law. Although the Supreme Court has shifted direction since 2020, the underlying mechanism Carrington warned about persists. Law continues to function less as a mediating craft grounded in democratic self-rule and more as an instrument of social reconstruction administered by an academically credentialed class.<\/p>\n

Judicial Transformation and Displacement<\/strong><\/p>\n

Carrington feared a liberal krytocracy in which judges would operate as a moral priesthood, insulated from popular control and guided by elite intuition rather than law. That vision reached its apex in decisions such as Obergefell v. Hodges, which constitutionalized same-sex marriage through precisely the kind of moral reasoning and appeal to evolving social sentiment Carrington associated with Justice Brennan. Contemporary elite consensus was treated as constitutional meaning.<\/p>\n

The past several years mark a genuine institutional shift. The current Supreme Court majority has openly rejected Brennan-style non-interpretivism. Dobbs v. Jackson Women\u2019s Health Organization<\/em> returned abortion to elective politics and state legislatures, seemingly answering Carrington\u2019s call for democratic self-government and moral pluralism.<\/p>\n

Yet this shift has not resolved the deeper alienation Carrington described. It has merely displaced it. While the Supreme Court now emphasizes text, history, and original public meaning, lower courts, administrative agencies, and elite institutions continue to pursue the same transformational aims through statutory interpretation, procedural doctrines, and regulatory enforcement. For many members of the legal elite, the Court itself is now treated as illegitimate precisely because it refuses to serve as guardian of a progressive moral order.<\/p>\n

Academization and the Transformation of Legal Knowledge<\/strong><\/p>\n

The separation between the legal academy and the practicing profession is now nearly complete. A defining feature of elite law schools is the rise of the JD\u2013PhD as the dominant credential for entry into academic positions. A substantial proportion of tenure-track faculty now hold doctoral degrees in disciplines such as economics, sociology, or philosophy in addition to a law degree. Prestige and advancement are increasingly determined by recognition within external academic fields rather than by engagement with courts, legislatures, or the practicing bar.<\/p>\n

This incentive structure shapes what counts as serious scholarship. Legal research is oriented toward problems that reward theoretical novelty and interdisciplinary abstraction, even when such work bears only an indirect relationship to the practical demands of legal decision-making. Over time, attention has shifted away from the mundane mechanics of governance toward high-level critique and meta-theory, further widening the gap between legal education and the ordinary administration of law.<\/p>\n

From Legal Reasoning to Demographic Governance<\/strong><\/p>\n

Carrington\u2019s 1992 essay Diversity!<\/a> identified the decisive institutional mechanism behind this transformation. Moral claims about inclusion were gradually detached from traditional legal reasoning and rearticulated as administrative imperatives. Rather than operating through persuasion or doctrinal debate, diversity came to function as a governing objective, enforced through hiring standards, accreditation criteria, and evaluative metrics that treated demographic outcomes as evidence of institutional competence.<\/p>\n

Carrington described this development as a form of moral influenza, not to question the sincerity of its advocates, but to highlight how moral enthusiasm overwhelmed professional restraint. Once moral commitments were translated into bureaucratic standards, disagreement ceased to be legible as judgment and was instead interpreted as deficiency. Legal education shifted from mediating among competing principles within a shared professional culture to managing compliance with externally imposed norms. This is the point at which academization stops being drift and becomes design.<\/p>\n

Psychological Enforcement and the National Class<\/strong><\/p>\n

Rony Guldmann\u2019s account of elite legal education in his 2022 memoir The Star Chamber of Stanford<\/b><\/a> supplies the psychological dimension Carrington left implicit. Elite institutions do not primarily discipline dissent through argument or rebuttal. They do so through informal mechanisms that recode disagreement as pathology rather than judgment. Membership in the national class is marked by posture, vocabulary, and affect as much as by formal belief. Ideas that fall outside approved frames are not refuted so much as rendered unserious, unstable, or unsafe.<\/p>\n

This explains why elite tolerance is selectively applied. Difference is celebrated when it flatters elite self-conception and managed when it challenges foundational assumptions. Conservative claims of cultural oppression are rarely treated as rival judgments within a shared moral universe. They are more often interpreted as symptoms of failed socialization, provoking a disgust-based response that reinforces class boundaries while preserving the appearance of neutrality.<\/p>\n

The resulting asymmetry creates what might be called a problem of meta-equal protection. Elite actors retain broad discretion to act on their own cultural judgments while denying that discretion to those they govern. Exclusions made by institutions are reframed as professionalism or safety; parallel judgments by non-elite actors are condemned as prejudice. Equality is formally universalized while substantively defined from a privileged interpretive position.<\/p>\n

The Civil Rights Constitution and Administrative Lock-In<\/strong><\/p>\n

In his 2020 book, The Age of Entitlement: America Since the Sixties<\/b>, Christopher Caldwell provides the constitutional frame that explains why these dynamics are so durable. The United States now operates under two competing constitutional orders. The older order, rooted in the Constitution of 1788, emphasizes limited government, procedural rights, and pluralism. The newer civil-rights order, emerging after 1964, is organized around substantive outcomes, bias elimination, and permanent moral emergency.<\/p>\n

This second constitution relies on administrative enforcement rather than democratic consent. Agencies, accreditation bodies, and private litigators act as its primary instruments, bypassing traditional separation of powers while embedding moral commitments into institutional infrastructure. Freedom of association is treated as suspect whenever it produces unequal outcomes, licensing continual surveillance and intervention into domains once considered private.<\/p>\n

Caldwell argues that the coexistence of these two orders was sustained not through reconciliation but through fiscal deferral. The civil-rights regime required extensive redistribution and administrative expansion, while the older order continued to promise material stability and low taxation to the middle class. Deficit spending bridged the contradiction, postponing political reckoning by borrowing from the future. When debt could no longer absorb the strain, the underlying constitutional tension reemerged as open political conflict rather than technocratic adjustment.<\/p>\n

Conclusion<\/strong><\/p>\n

Taken together, Carrington, Guldmann, and Caldwell describe a legal academy that has shifted from custodian of professional craft to engine of administrative moral reconstruction. Carrington supplies the institutional diagnosis, Guldmann the psychological mechanism, and Caldwell the constitutional architecture. The present condition of legal education is not an aberration or overreach. It is the settled logic of a rival constitutional order. What appears as alienation, cruelty, or abstraction is not malfunction. It is how the system maintains itself.<\/p>\n

Bibliography<\/strong><\/p>\n

Paul D. Carrington<\/b>, Diversity!<\/i>, 42 Utah L. Rev. 1105<\/b> (1992).<\/p>\n

Paul D. Carrington<\/b>, Stewards Of Democracy: Law As Public Profession<\/b> (1999).<\/p>\n

Rony Guldmann<\/b>, Conservative Claims of Cultural Oppression: On the Psychological Roots of the Liberal-Conservative Conflict<\/b> (2022).<\/p>\n

Rony Guldmann<\/b>, The Star Chamber of Stanford: Crisis of Authority in the Liberal University<\/b> (2022).<\/p>\n

Christopher Caldwell<\/b>, The Age of Entitlement: America Since the Sixties<\/b> (2020).<\/p>\n

Patrick J. Deneen<\/b>, Regime Change: Toward a Postliberal Future<\/b> (2023).<\/p>\n

Adrian Vermeule<\/b>, Common Good Constitutionalism<\/b> (2022).<\/p>\n

Cass R. Sunstein & Adrian Vermeule<\/b>, Law and Leviathan: Redeeming the Administrative State<\/b> (2020).<\/p>\n

Robert P. George<\/b>, Making Men Moral: Civil Liberties and Public Morality<\/b> (1993).<\/p>\n

Mary Ann Glendon<\/b>, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society<\/b> (1994).<\/p>\n

Harry T. Edwards<\/b>, The Growing Disjunction Between Legal Education and the Legal Profession<\/i>, 91 Mich. L. Rev. 34<\/b> (1992).<\/p>\n

Thomas Sowell<\/b>, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy<\/b> (1995).<\/p>\n

Michael J. Sandel<\/b>, The Tyranny of Merit: What\u2019s Become of the Common Good?<\/b> (2020).<\/p>\n

Kimberl\u00e9 Crenshaw<\/b>, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color<\/i>, 43 Stanford L. Rev. 1241<\/b> (1991).<\/p>\n

Derrick Bell<\/b>, Faces at the Bottom of the Well: The Permanence of Racism<\/b> (1992).<\/p>\n

Mari Matsuda<\/b>, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction<\/i>, 100 Yale L. J. 1329<\/b> (1991).<\/p>\n

Duncan Kennedy<\/b>, Legal Education as Training for Hierarchy<\/i>, in The Politics of Law: A Progressive Critique<\/b> (David Kairys ed., 1982).<\/p>\n

Jeremy Waldron<\/b>, The Dignity of Legislation<\/b> (1999).<\/p>\n

Samuel Moyn<\/b>, Humane: How the United States Abandoned Peace and Reinvented War<\/b> (2021).<\/p>\n","protected":false},"excerpt":{"rendered":"

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