Book Review: Closing The Courthouse Door

Closing The Courthouse Door is a book about role of the judiciary in the American system by law professor Erwin Chemerinsky. The book examines how Supreme Court decisions over the past few decades have greatly limited the ability of the courts to protect civil liberties, hold government accountable, and enforce the Constitution. The book is divided into seven chapters, each of which focuses on a different aspect of the problem of reduced access of the American people to the courts.

In the first chapter, Chemerinsky argues that if rights cannot be enforced and damages cannot be awarded by the courts, then the government and its agents may do as they please, as unenforceable limits are functionally equivalent to no limits. He views Marbury v. Madison as a cornerstone of American jurisprudence rather than a usurpation of power not granted by the Constitution, and views the Constitution as an effort to limit government rather than as an expansion of government beyond what the Articles of Confederation allowed. Chemerinsky makes a case for the judicial branch being the most suitable branch for enforcing the Constitution, then addresses and rebuts several competing views of the role of the judiciary.

Sovereign immunity is the focus of the second chapter, and Chemerinsky shows how the idea that the state can do no wrong is at odds with many American values and constitutional principles, including federalism, due process, and government accountability. However, the Supreme Court has made numerous rulings expanding sovereign immunity since the time of the Eleventh Amendment‘s adoption, making it virtually impossible for a citizen to obtain a redress of grievances when victimized by the state. He tackles several arguments in favor of sovereign immunity, such as protecting government treasuries, separation of powers, and the existence of alternative remedies. Next, Chemerinsky examines how case law has granted effective immunity to local governments, even though they do not officially have it.

In the third chapter, Chemerinsky continues with the theme of immunity by discussing it at the level of government agents. He discusses the Bivens case, which allows federal agents to be sued for damages if they violate constitutional rights, and the subsequent hostility of the Court to that decision. Disallowing suits when Congress provides an alternative remedy, when Congress says they are disallowed, when military personnel are defendants, when judges find it undesirable to allow such claims, or when private prisons and their guards are defendants, has all but overruled Bivens. Furthermore, Chemerinsky argues that absolute immunity for certain government officials should be replaced by qualified immunity to give the officials room to work but hold them accountable.

The fourth chapter details how various Supreme Court decisions have narrowed the ability of citizens to bring matters before the courts. Chemerinsky explains how the doctrine of standing has been invented and used to keep actions which do not have particular identifiable victims from being adjudicated. He argues that the narrow interpretation of what constitutes an injury and the refusal to hear claims based on a generalized grievance that all Americans suffer mean that no one is able to challenge the government in court when it violates the Constitution. The second half of the chapter covers the political question doctrine, and Chemerinsky makes the case that it is essentially a punt by the judicial branch to the elected branches of government with the end result of trusting them to follow the law, which history shows to be an unrealistic option.

The gradual erosion of the writ of habeas corpus is discussed in the fifth chapter. Here, Chemerinsky shows how the Supreme Court has upheld vastly disproportionate prison sentences on technicalities, kept federal courts from enforcing the Fourth Amendment through habeas corpus, disallowed claims not made and evidence not presented in state courts from being heard in federal courts, barred arguments for novel rights that the Supreme Court has not yet recognized, and prevented prisoners from filing multiple habeas corpus petitions. He explains how the Antiterrorism and Effective Death Penalty Act has all but removed the right of habeas corpus at the federal level.

In the sixth chapter is called Opening the Federal Courthouse Doors, but the chapter actually shows even more examples of them being closed. For example, plaintiffs can now be required to show facts without being allowed to go through the discovery phase of a case that is required to learn those facts, setting up a catch-22. The abstention doctrine created in Younger v. Harris and is cited as a major barrier to the proper operation of federal courts as well as a means for state officials to abuse citizens. Chemerinsky then discusses the difficulties in using class action lawsuits that have been imposed in recent years as well as the rise in private arbitrations that favor corporations over individuals.

The final chapter begins with cases involving egregious human rights abuses by the CIA. These cases were dismissed on the grounds that state secrets might be revealed if the cases were tried, which is yet another way to keep courts from enforcing the Constitution. Chemerinsky concludes by addressing objections to the arguments made through the entire book.

The book is just over 200 pages, but feels as long as any 400-page book that I have read. To his credit, Chemerinsky’s left-wing political leanings do not appear any more than they must in order for him to make his arguments. Libertarians will undoubtedly think that the changes proposed in the book do not go nearly far enough, but Closing The Courthouse Door is still worth reading for those capable of handling the subject matter.

Rating: 3.5/5

Book Review: Come And Take It

Come And Take It is a book about 3D printing of firearms and the implications thereof by American entrepreneur Cody Wilson. The book details Wilson’s experiences over nine months in 2012-13 when he decided to leave law school and figure out how to use a 3D printer to make a functional plastic handgun. It also conveys his thoughts on political events of the time, such as the re-election of President Barack Obama and the Sandy Hook school shooting.

The story of Wilson’s entrepreneurship is not so different from many others; he must decide whether to make his venture be for-profit or non-profit, decide whether to work for the state or the people, figure out how and where to get funding for his operations, find the right people to work with, wrestle with the impulse to continue his schooling versus working on his entrepreneurial idea, and deal with legal challenges and roadblocks thrown his way by established interests. What sets it apart is the unique nature of his work.

Wilson’s story takes some interesting turns, such as trips to Europe and California where he meets with everyone from left-wing anarchists in the Occupy movement to a club of neoreactionaries led by Mencius Moldbug. This shows that the project to allow everyone to be armed regardless of government laws on the matter changes the political calculus across the entire spectrum, thus making him a person of interest to people of a wide range of political views.

The book is a valiant effort in creative writing and storytelling, but its subtitle of “The Gun Printer’s Guide to Thinking Free” is rather misplaced. It is not so much a guide for someone else to follow as an example which future entrepreneurs may study in order to adapt proper elements thereof for their own projects. The technical details that one might hope for in such a book are only partially present, though we may fault the US Department of State for that, as Wilson tried to include details of the production procedure for his plastic handgun but was forced to redact the material with large black blocks in the final chapter.

In a strange way, the book feels both long and short. Though it is just over 300 pages, it takes much less time to read than most books of that size. Come And Take It offers an interesting look into the mind and experiences of a true game-changer in the world of technology and self-defense, though the reader who is looking for thorough details on 3D printed weapons or a general manifesto on liberty must look elsewhere.

Rating: 3.5/5