Harvard Law School trains a Mandarin class to operate the American Empire and crony capitalism in service of power and wealth. Justice is a stepchild of the curriculum.
Students are trained to answer “how” to accomplish their clients’ objectives, not to question the justice of what they are facilitating. The result is morally stunted American leadership and a legal regime little better than the strong do what they can and the weak suffer what they must.
A few pages of history speak volumes of logic, to borrow from Justice Oliver Wendell Holmes in New York Trust Co. v. Eisner (1921).
HLS icon Felix Frankfurter (class of 1906) supported President Franklin D. Roosevelt’s ill-conceived and ill-fated court packing legislation. (FDR had earlier received an honorary HLS degree in 1929). Frankfurter’s political fealty was rewarded by an FDR appointment to the United States Supreme Court.
There, Justice Frankfurter voted to uphold conditioning access to public schools on saluting the flag, Minersville School District v. Gobitis (1940), West Virginia State Board of Education v. Barnette (1943). The HLS legend also voted to sustain FDR’s racist concentration camps for citizens and residents of Japanese ancestry in Hirabayashi v. United States (1943) and Korematsu v. United States (1944). (Korematsu was overruled in Trump v. Hawaii (2018).
The racist concentration camps were the handiwork of HLS superstars who endorsed the Orwellian finding of General John DeWitt after surveying the west coast: “The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.” Attorney General Francis Biddle (class of 1911) surrendered his conscience to his political benefactor in the White House. According to his Justice Department, “Since the Occidental eye cannot readily distinguish one Japanese resident from another, effective surveillance of the movements of particular Japanese residents suspected of disloyalty is extremely difficult if not practically impossible.” Assistant Secretary of War John McCloy (class of 1921), chief architect of the concentration camps, confessed that “whether they are Japanese or not, the Constitution is just a scrap of paper to me.” Secretary of War, Henry Stimson, another HLS graduate (class of 1891), tacitly concurred.
Then Senator John F. Kennedy, crowned with a HLS honorary degree in 1957, neglected to cast a vote on whether to condemn Senator Joe McCarthy for his notorious anti-Communism outrages. Senator Kennedy was then hospitalized for alleged medical conditions, but he refrained from declaring how he would have voted if he had been present. As President, Mr. Kennedy authorized the assassination of Cuba’s Fidel Castro in Operation Mongoose after the Bay of Pigs debacle failed to overthrow the Maximum Leader. On the other hand, Dean Erwin Griswold (class of 1928) assailed Chairman McCarthy playing “judge, jury, prosecutor, castigator, and press agent on one.” As Solicitor General under President Richard Nixon, however, Dean Griswold lent his voice to the American Empire in the Pentagon Papers case. Before the United States Supreme Court, the Dean argued for censorship in New York Times v. United States (1971) arguing the publication would “cause great and irreparable harm to the security of the United States.” He later recanted many years after leaving office: “I have never seen any trace of a threat to the national security from the publication. Indeed, I have never even seen it suggested that there was such an actual threat….”
Then Secretary of State Dean Acheson (class of 1918) persuaded President Harry Truman to refrain from seeking a congressional declaration of war over Korea to inaugurate an imperial presidency contrary to the universal understanding of the Declare War Clause among its architects. Alexander Hamilton, for instance, wrote: “Congress shall have the power to declare war; the plain meaning of which is, that it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war….” Wars not in self-defense in response to an actual or imminent attack against the United States constitute crimes against peace according to the Nuremberg precedent. War sounds the death knell for the rule of law. Among other things, it legalizes what is customarily first-degree murder, i.e., killing not in self-defense or in defense of others threatened with imminent death. After Korea, the Declare War Clause became a dead letter. Unconstitutional presidential wars became the norm.
President Barack Obama (class of 1991), former President of the Harvard Law Review (HLR), asserted and exercised unreviewable presidential power to play prosecutor, judge, jury, and executioner to kill any person on the planet based on secret, unsubstantiated information that the target imminently threatened the national security—the very definition of tyranny according to James Madison in Federalist 51. (That power was also claimed by President George W. Bush and is currently claimed by President Donald J. Trump).
Former Director of the Central Intelligence Agency and Secretary of State Mike Pompeo (class of 1994), among other things, endorses President Donald J. Trump’s alarming counter-constitutional dogma, “…I have Article II, where I have the right to do whatever I want as president,” including the initiation of nuclear strikes against North Korea or Iran. Secretary Pompeo supports snug ties with the Kingdom of Saudi Arabia despite its assassination of journalist and critic Jamal Khashoggi, chronic war crimes in Yemen, Wahhabi bigotry, and the killing, torture, or persecution of every dissident Saudi citizen.
Billionaire Lloyd Blankfein (class of 1978), as Chairman and CEO of Goldman Sachs, taking a page from the Gilded Age, championed “to big to fail banks” and accepted $10 billion in TARP money. TARP benefited the 1 percent of the 1 percent in the distribution of trillions of dollars.
In April 2012, HLR President Conor Tochilin disrespected reasoned discourse by completely ignoring the letter request made by Ralph Nader and me that President Obama be invited to participate in a HLR sponsored constitutional seminar to defend limitless presidential national security powers. In May 2013, HLR President Ms. Gillian Grossman reacted with similar disdain to our overture.
HLS sets the ethical or moral standards of the legal community. Its primary teaching objective should be the subservience of power to justice—teaching “why” before teaching “how.” To the extent the law protects the weak from the strong, to that extent the law shines and glitters.
The Harvard Law Review should devote an entire issue to the law as an instrument of justice rather than power. The Harvard Law School should conduct a one-day seminar for its students on the same topic and re-examine its instruction accordingly.
To whom much is given, much is to be expected.
Bruce Fein graduated from the class of 1972. He is the author of American Empire Before The Fall and Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.