ESSAY
james mcclellan,
benchmark , and an
informed public
Ralph A. Rossum
I
n the fall of 1983, the newly established
Center for Judicial Studies published the
premier issue of Benchmark: A Bimonthly
Report on the Constitution and the Courts.
James McClellan, president of the center,
was its editor, and over the course of the next
seven years he would pour his heart, mind,
and soul—his love of the U.S. Constitution,
his keen intellect and extraordinary knowledge of all things legal, and his steadfast
commitment to the principles of federalism
and limited government—into making it
at the time the leading legal journal challenging judicial activism and defending the
original understanding of the Constitution.
James McClellan was born on June 26,
1937. After graduating from the University
of Alabama and serving in the United States
Marine Corps, he earned both a PhD in
political science and a JD from the University
of Virginia. He taught at the University of
Alabama, Emory University, and HampdenSydney College, and he served as chief counsel and staff director of the Subcommittee on
the Separation of Powers of the U.S. Senate
Committee on the Judiciary. With Professor
George Carey of Georgetown University,
he was the cofounder and coeditor of the
Political Science Reviewer and coeditor of the
Gideon edition of The Federalist.1 Early in his
career, he was coauthor, along with his good
friend Russell Kirk, of The Political Principles
of Robert A. Taft.2 His most influential
book was Joseph Story and the American
Constitution.3 Among his other major publications is Liberty, Order and Justice: An
Introduction to the Constitutional Principles
of American Government.4
From 1983 to 1993, he was the founding
president of the Center for Judicial Studies,
a nonprofit educational organization devoted
to the advanced study of the Constitution and
the role of the judiciary. The center published
books and monographs and conducted scholarly conferences and judicial seminars on the
Constitution for state and federal judges.
From 1993 to 1998, he served as director
of publications and was a senior research
Ralph A. Rossum is Salvatori Professor of American Constitutionalism at Claremont McKenna College.
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MODERN AGE
scholar at the Liberty Fund in Indianapolis.
His last post, from 1998 to 2003, was as the
James Bryce Visiting Fellow at the Institute
of United States Studies at the University
of London. He died of complications from
pulmonary and heart disease on January 28,
2005, at his home in Meherrin, Virginia.
McClellan began the premier issue of
Benchmark by declaring that “what the
world needs is a good independent journal
of opinion that systematically monitors the
bench and bar, and holds the legal profession accountable for the consequences of its
actions.”5 It needs “a watchdog publication”
that will call to the public’s attention the
increasing “ ‘judicialization’ of America,”
the “explosion of law and litigation,” the
“expanding power and heightened activism
of the Federal Judiciary,” and the antidemocratic consequences of “judicial supremacy.”
Benchmark, he announced, was that publication.6 The judiciary had lost all sense of
self-restraint and, therefore, needed to be
restrained by the Congress, but, he continued, “the success of any legislative effort to
limit the powers of the Judiciary or slow
down the growth of litigation depends in
large measure on an informed public support for judicial reform.” That support, he
declared, “will come only if the public is
made aware of the extent to which Federal
judges are running the affairs of the country.
It is in pursuit of these ends that Benchmark
was founded.”7
Benchmark, he proclaimed, would be
a “unique,” “self-governing” law journal
“independent of the law schools and organized bar.” National, state, and local bar
association journals were, he noted, “preoccupied with office management problems,
litigation techniques, computer research,
and other practical affairs” and provided
little if any “critical insight into questions
of public policy, judicial law-making, or
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constitutional law.” Law reviews offered “a
better understanding of these subjects, but
like the trade journals tend to be protective
of the courts and blindly loyal to the legal
profession.” Moreover, they had another
defect: they “service law school professors,
and thus generally reflect the prevailing liberal orthodoxy of that segment of the profession.” With great understatement, he found
“somewhat disconcerting” the fact that
“law students, still groping at the hornbook
stage of the law, are refereeing these journals
and playing a decisive role in what shall be
published.”8
Benchmark would be unique among law
journals in another respect as well: it would
“subscribe to the maxim that Rule of Law
demands adherence to the original intent of
the Constitution.”9 The principle of liberty
through law cannot long endure, he warned,
“if an increasingly powerful judiciary is making the law rather than interpreting it” and
is “operating outside of our traditional checks
and balances system.” The Supreme Court,
he charged, “has placed itself above the
Constitution, and has even gone so far as to
assert that its interpretations are the supreme
law of the land, equivalent to the Constitution
itself. We [at Benchmark] hold that judicial
supremacy, like parliamentary supremacy,
has no place in our Constitution and was
rejected by the Framers.” Not only is judicial
supremacy “inconsistent with the principles of
limited government”; it also “makes judicial
review intolerable in a democratic republic.”
As he noted, “Certainly no society can properly call itself democratic where as few as five
appointed judges, who are beyond the control
of the people and their elected representatives,
can determine important public policies and
the meaning and substance of nearly all the
freedoms that the people possess.” Therefore
the need for Benchmark—to inform the
public of the threat that an activist judiciary
JAMES M C CLELLAN, BENCHMARK , AND AN INFORMED PUBLIC
posed to their liberties and their Constitution
so they would demand that the Congress
discharge its “primary responsibility to return
power usurped by the Judiciary to the States
and to the people.”10
The end at which Benchmark aimed was
a restrained judiciary subordinate to the
Constitution and the original understanding
of those who drafted and ratified it. As he
argued in a later issue, if “a judge cannot base
his decision on the text or the intent of the
Framers, then he ought to say so and defer to
the judgment of the elected representatives
of the people.”11
In one of his few signed articles in
Benchmark, McClellan spelled out what
he understood to be the key principles of
“original intent jurisprudence”: (1) The
Constitution is “legitimate,” because it
“originated with, and was controlled by,
the people”; (2) the national government is
to be “in all respects politically responsible
both to the States and the governed”; (3) the
Constitution established a “limited government” and is “a legal, not just a political limitation on government”; (4) the Constitution
established a limited government by “enumerating, separating, and dividing” the
powers of government; and (5) “the Bill of
Rights . . . [i]s a States’ Rights document,
the bulwark of American federalism,” for
it “changed nothing as far as the constitutional structure was concerned” and “simply
declared what was already understood, viz.,
that the National government had no authority in the general area of civil liberties.”
The Constitution, he declared, was “in
every respect a conservative document.”
But liberal judicial activists had abandoned
those conservative original-intent principles
and replaced them with “the delusion that
the primary purpose of the Constitution is
not to provide for limited government but
to protect rights, or perhaps even to increase
the powers of government in order to grant
even greater protection for more and more
rights, and further, that only the Supreme
Court has the right to say what these rights
shall be.” That approach, he objected, “puts
the rights cart before the constitutional horse
and robs the people of their most precious
freedom—the right of self-government.”12
“Original intent jurisprudence,” he argued,
“limits the power of the Federal judiciary
and strengthens the hand of Congress and
the State legislature. It succors the separation
of powers and federalism” and it “weakens
the towering edifice of case law upon which
the power of the modern Court rests.” And,
of critical importance, it “calls into question
the revolutionary doctrine of incorporation,
the great well-spring of judicial power that
steadily irrigates judicial activism and gives
the modern Court proprietorship over a vast
and growing field of civil liberties, most of
which were originally planted and cultivated
in the State tribunals.”13
A
s an analysis of the subsequent issues
of Benchmark makes clear, McClellan
worked tirelessly to restore the original
understanding of the Constitution. He
appreciated the magnitude of the task; he
and those who stood with him were engaged
in “a struggle for the soul of a Constitution
that is rapidly slipping away. The ability of
the nation to encourage religion and promote morality, to limit the powers of those
who govern us and hold them accountable
for their actions, and to resist the forces of
ill-considered innovations, has been severely
weakened by an activist judiciary and its
army of collaborators.” Yet he remained confident: “In this situation, there is a glimmer
of hope, for the American Constitution has
deep roots and is still a powerful force. But
it will require a massive educational effort to
kindle this glimmer into a flame.” Benchmark
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MODERN AGE
was McClellan’s “massive educational effort”
to kindle this flame so that the Constitution
and its conservative principles could once
again be the torch of liberty. He did so by
employing a variety of creative means to
reach and inform the public.
First, he solicited scholarly contributions
from some of the most prominent and distinguished public servants, historians, political
scientists, and law professors in the nation.
In the seven years he edited Benchmark, he
published eighty-four articles and forty-two
book reviews—excluding his own contributions. Fifty-one nationally recognized
scholars and public figures contributed a
total of eighty-seven of these articles or book
reviews (69 percent of all such contributions).14 Many contributed to Benchmark
because they shared his passionate embrace
of an original-understanding approach to
the Constitution and his rejection of judicial
activism. Others contributed for a different
reason: while they did not share McClellan’s
constitutional commitments, they recognized his professional standing as a first-rate
constitutional scholar and, as a consequence,
wished to honor him with their solicited contributions. Whatever their motivation, they
added to Benchmark’s reputation and helped
McClellan reach those members of the public he was most interested in informing.
Second, he sought to achieve the ends of
Benchmark by undertaking and publishing
a series of innovative research projects and
bringing them to the public’s attention. His
first endeavor in this regard was devoting a
whole issue to “Judging the Judges: The First
Two Years of the Reagan Bench.”15
In a year-long study that evaluated the more
than seven hundred opinions of all sixty-two
circuit and district court judges appointed
by President Reagan who had published at
least one opinion before 1983, Benchmark
concluded that “thirty-one judges exercised
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judicial restraint in all of their significant
cases without exception,” “sixteen exercised
judicial restraint in nearly all of their significant cases,” and nine “exercised judicial
restraint in no more than half their significant cases.”16 McClellan’s purpose was clear:
Benchmark was watching and reporting what
the judges were doing and would report their
actions to both the president who nominated
them and the public at large.
McClellan judged not only the inferior
federal judges but also the Supreme Court
itself. He had Bruce Fein, Benchmark’s
Supreme Court editor, analyze the 1983–84
term of the Court; Fein jubilantly reported
that “the term marked the beginning of a
decisive swing toward principles of judicial
restraint and away from doctrines ordaining meticulous judicial oversight of coequal
organs of government.”17 When Fein’s rosy
assessment was flatly contradicted by the
Court’s continued embrace of judicial activism, McClellan then charged Charles Rice,
Stephen Markman, Eugene Hickok, Jules
Gerard, Lino Graglia, and Frank Carrington
to review the 1986–87 term, the first year of
the Rehnquist Court.18 Their conclusions of
the work of the Court were much less sanguine; they were nicely summed up in Rice’s
words—“it is safe to say that whatever comes
will probably be an improvement”19 —and
Graglia’s—the Court performed like “a judicial butterfly flitting gently and temporarily
from side to side on every issue as the mood
of the moment seized [it].”20
McClellan also judged how the solicitor
general argued cases on behalf of the federal
government before the U.S. Supreme Court.
In “A Lawyer Looks at Rex Lee,” he undertook the task himself of assessing whether
President Reagan’s first solicitor general was
carrying out Reagan’s pledge “to halt the
expansion of Federal judicial power and
return the nation to the principles of limited
JAMES M C CLELLAN, BENCHMARK , AND AN INFORMED PUBLIC
government.”21 What he found upon “a close
examination of actions taken by Lee before
the Supreme Court” in cases dealing with
abortion, church-state relations, states’ rights,
labor unions, and statutory construction was a
repeated pattern of positions that are “directly
at odds with the President’s program” and
that “regularly advanced points of law that are
calculated to preserve intact existing case law
and the doctrine of the Supreme Court.”22
He charged that “instead of confronting
the Justices with principled arguments, challenging them to defend the rationale of their
opinions, and demanding reversal of liberal
precedents, Lee has consistently addressed
the Court as a dutiful and fawning serf
might approach the Czar: painfully careful
not to offend the sensibilities of the Crown,
seeking only a small pittance, but grateful
for a crumb.” When Lee was not “congratulating the Court for its usurpations or urging
it to greater heights of Judicial Supremacy,”
he was keeping “his eyes fixed low on the
constitutional horizon, looking for a break
in the treeline, an opening where he [could]
plant an incremental victory.”23 By so doing,
Lee earned McClellan’s utter contempt:
“His writings and his legal activities reflect
the interests, values, and prejudices of the
liberal mind. To say that he is not suited
for the task to which he has been assigned
is to understate the case for his prompt
removal.”24
In addition, McClellan assessed the
Congress and its willingness to cabin judicial excess. He initiated “the CJS [Center
for Judicial Studies] INDEX, Benchmark’s
annual Congressional record vote analysis.”
It was unique in both its focus and format,
for it was the only nationally published voting index that concentrated exclusively on
judicial and constitutional issues and the
only one that included recorded votes in the
House and Senate Judiciary Committees.
Third, McClellan sought to achieve the
ends of Benchmark by going beyond a legal
publication’s standard book-review section
(which he nonetheless preserved) by introducing a “Review of the Reviews” in each
issue. He read extraordinarily widely and
would summarize and assess the arguments
of those law review articles that touched
on the questions of judicial activism and
originalism and then present them to the
broader public. If he found their arguments
to be sound, he would simply summarize
and endorse them, but if he found their
arguments defective, he would educate his
readers as to why. Thus, in his review of “The
Myth of Conservatism as a Constitutional
Philosophy,” published in 1986 in the Iowa
Law Review, in which Donald Elfbein
argued that, given the vagueness of the language of the Constitution and the impossibility of identifying the true intentions of the
Framers, the Court is free to engage in judicial activism and amend the Constitution
as it sees fit, McClellan remarked: “It is
difficult to suppress the nagging suspicion
that much of this talk about vagueness and
generalities stems from a want of homework
and consequential lack of familiarity with
original sources.”25
Fourth, McClellan sought to inform the
public by doing special issues on critical topics. Thus he commissioned Paul C. Peterson,
Benchmark’s Bicentennial editor, to organize
a symposium issue of the journal devoted
to “James Madison and the Constitution.”
Peterson, in his Editor’s Introduction,
spelled out McClellan’s objective perfectly:
“Benchmark is a journal devoted to the idea
of constitutionalism and committed to
the maintenance or restoration (as the case
may be) of the American Constitution. The
understanding of constitutionalism underlying this journal’s devotion and commitment
. . . has come to be known as a ‘jurisprudence
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of original intent.’” As Peterson continued, “If we are not to be governed by the
intent of those who framed and ratified the
Constitution and its subsequent amendments, we will cease to be governed by a constitution in any meaningful sense.” Therefore,
Peterson announced, this issue would examine the constitutional thought of “the Father
of the Constitution,” for “to understand the
thought of those who framed and ratified
the Constitution (and particularly those who
played leading roles) is to understand better
the intent of that document.”26
McClellan’s interest in bringing the “jurisprudence of original intent” to the attention
of Benchmark’s readers also prompted him
to organize a symposium issue that paid
tribute to Raoul Berger.27 Berger’s central
thesis­
—throughout his seven books and
one-hundred-plus law review articles—was
that the Supreme Court was not empowered
to reverse the unmistakable intention of the
Framers. McClellan wanted Berger’s message
to be widely disseminated and known, and so
he brought together five major constitutional
authorities to reflect on Berger’s enormous
contribution to the interpretive enterprise.
One of these authorities, Charles Cooper,
captured Berger’s approach and the importance of his message brilliantly. Berger
was a violinist before he turned to the law,
and Berger had once written these words:
“Music-making is more than a succession of
beautiful sounds, more than a medium for
mere personal expression. . . . The prime task
of the artist is to search for and lay bare the
meaning that is imprisoned in the little black
dots which weave their way across the music
staves.” Cooper then commented: “Likewise,
as Professor Berger has spent almost a half
century teaching us, the prime task of the
judge, or of the constitutional scholar, is to
search for and lay bare the meaning that is
imprisoned in the words of the Constitution.
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As the composer binds the musician, so too
does the lawmaker bind the judge.”28 Berger’s
message was Benchmark’s, and McClellan’s
tribute to Berger was an important means to
advance the ends that Benchmark served.
When Judge Robert Bork was nominated
by President Reagan to be an associate justice
of the Supreme Court, McClellan assembled
a team of twelve legal scholars to examine
more than 450 cases in which Bork had participated and to assess “the nominee’s interpretive principles and practices.”29 The team’s
analysis showed “beyond all doubt that
Judge Bork has practiced judicial restraint,
and there can be no question that he believes
himself bound by the Constitution and the
letter of the law.”30 The team also found him
to be well within the judicial mainstream: As
McClellan wrote: “During his time on the
Court of Appeals, Judge Bork has written
more than 100 majority opinions, not one
of which has been reversed by the Supreme
Court. In six cases in which Judge Bork dissented, the Supreme Court adopted Judge
Bork’s view as its own. He has also joined
in more than 400 majority opinions. None
of these has been reversed by the Supreme
Court, either.”31
McClellan was prompted to observe
that “this is a rather remarkable achievement, given the great number, variety, and
complexity of the issues he has been called
upon to resolve.”32 The team concluded that
Bork “is not only qualified for this office,
but is eminently well-qualified.”33 Their only
criticism—ironic given the reasons for the
Senate’s rejection of Bork’s nomination—
was this: “We would be less than candid
with our readers if we neglected to disclose
our disappointment in the realization that
Judge Bork has not truly challenged activist
precedents in his many opinions.”34
After the defeat of Bork’s nomination in
the Senate, thanks in no small part to the
JAMES M C CLELLAN, BENCHMARK , AND AN INFORMED PUBLIC
efforts of Harvard Law School’s Laurence
Tribe, McClellan organized a symposium
issue entitled “Laurence Tribe and the Politics
of Constitutional Law.”35 In his Editor’s
Introduction, McClellan noted that Tribe
was “wholly consumed by the prospect” of a
Supreme Court appointment under the next
Democrat president and that he seemed to
be spending “almost every waking moment
of his life campaigning for the high bench.”36
McClellan did not object to Tribe’s goal, but
he did object to the means he was employing
to obtain it. “It is one thing to campaign for
a seat on the Supreme Court. But manipulation of the Constitution by a Supreme Court
aspirant is something else indeed. There is
something unholy about putting heretics in
charge of sacred texts, and something foolhardy about appointing pyromaniacs to be
fire chiefs.”37
What made Tribe a heretic was his activist
sentiments. McClellan began the symposium
issue by sharing with Benchmark’s readers an
exchange of letters he had with Tribe. Tribe
had noticed that McClellan had been quoted
in the National Law Journal as saying that
if Tribe were on the Court, “we could kiss
the Constitution goodbye,” and so Tribe
wrote to McClellan expressing his doubts
that McClellan had been quoted accurately
and assuring him that he would never use
the Constitution to advance his own moral
or political views.38 In his reply, McClellan
gleefully reported that the National Law
Journal had indeed quoted him correctly and
reaffirmed his judgment that Tribe’s appointment to the Supreme Court would “trigger
a constitutional revolution of far reaching
consequences. This is because you are a high
priest of judicial activism who would inflict
serious and possibly irreparable damage
upon our constitutional structure if you were
a member of the Court.” McClellan pointed
out that, for Tribe, the constitutional text
“seldom serves as a point of reference” and
that his “branch of constitutional law has
little to do with the Constitution itself.”
He gave an example: Tribe’s insistence in
an article in the Harvard Law Review that
there is a “constitutional right” to publicfunded abortions. McClellan claimed this
demonstrated Tribe’s “creative genius for
inventive philosophical constructs and new
rights that have no basis in our fundamental
law. Like blossoms in the spring, they color
your constitutional landscape. But your
tree of liberty,” he charged, “is a grotesque
hybrid, for the rights you have engrafted on
to it are not of a constitutional variety. There
is no doubt in my mind that, if you had the
opportunity, you would make the Court
into an arboretum for the cultivation of
many new species.”39 The publication of this
extraordinary colloquy was itself a powerful
means for achieving Benchmark’s ends.
Judicial activism is practiced and defended
not only at the federal level but at the state
level as well, where it has a reciprocal and
reinforcing effect. McClellan, therefore,
devoted two issues of Benchmark to statecourt activism—one focusing simply on the
California and Texas supreme courts40 and
the other focusing more generally on the
way state courts have seized the states’ purse
strings, legislated tort reform from the bench,
and used “independent state grounds” to create rights not found in either the federal or
state constitutions.41 As the editor for one of
these issues, Edward J. Erler noted that “what
these articles show is that while debates over
judicial activism within the States are often
conducted in terms of particular policies or
the processes of judicial selection and tenure,
they are no different in substance from the
debate at the national level. In both cases,
what hangs in the balance is not this policy or
that, this judge or that; the most fundamental
issue is how judicial activism undermines both
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the moral principle of popular government
and the essential dedication of the people to
the very idea of the rule of law.”42 Erler’s words
offer still another example of McClellan’s
means for achieving Benchmark’s ends.
Fifth, McClellan sought to inform the
public of the dangers of judicial activism by
employing the powerful weapon of ridicule
and awarding its most prominent practitioners the “Pettifogger of the Month” award.43
Among others, he conferred the award on
U.S. District Court Judge George Howard
for ordering new balloting in a high school
Homecoming Queen contest;44 U.S. District
Court Judge John F. Grady for ordering
Eastern Airlines to reinstate with back pay
a transvestite pilot with “long-standing
problems of psychological disorders”;45 U.S.
District Court Judge Milton I. Shadur for
ordering officials in the Department of
Education to lobby Congress for more funds
to implement his desegregation plan for the
City of Chicago;46 Senator Arlen Specter,
“one of the least Republican Republicans,”
for collaborating “regularly with the
Kennedy-Biden-Metzenbaum gang on the
Judiciary Committee against an array of
Republican measures, including the abortion
and school prayer amendments and the proposed ‘good faith’ exception to the Supreme
Court’s exclusionary rule”;47 forty-one members of the Harvard Law School faculty for
their open letter protesting the granting of a
Kennedy School award to Attorney General
Edwin Meese;48 fifty law professors for their
opposition to the confirmation of Daniel
Manion to the U.S. Court of Appeals for the
Seventh Circuit;49 and Laurence Tribe for his
role in blocking the opening of a school for
black children on his street.50 By making the
arrogance, pomposity, and hypocrisy of these
activists obvious to all, McClellan sought to
convince the public of the need for congressionally led judicial reform.
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Sixth, and finally, McClellan sought to
achieve the aims of Benchmark by spelling
out how, specifically, the popular branches
could curb the courts. In his “Reports and
Commentaries” section at the back of each
issue of Benchmark, he carefully instructed
the public on how the Congress had plenary power under Article III, Section 2 of
the Constitution to regulate the original
jurisdiction of the lower federal courts and
to curtail the appellate jurisdiction of the
Supreme Court;51 how the Congress had “an
untapped reservoir of legislative power in
the Enforcement Clause” of Section 5 of the
Fourteenth Amendment to give substantive
meaning to due process, equal protection,
and the Bill of Rights provisions the Court
had incorporated to apply to the States;52 and
how the president could use presidential signing statements to confine statutory construction by judges. 53
I
n the spring of 1991, seven years after
its illustrious launch, Benchmark ceased
publication. The various foundations that
were the lifeblood of the Center for Judicial
Studies shifted their funding priorities, and
McClellan was always a much finer constitutional scholar than fund-raiser. He, however,
left a great legacy.
I expect that when I was regularly receiving and reading the issues of Benchmark, my
reactions were the same as many other readers: I was always impressed with McClellan’s
sparkling prose, wide-ranging scholarship,
conception of the issues that needed to
be addressed, and professional standing
that allowed him to solicit such splendid
contributions from first-rate constitutional
scholars, judges, and public officials, and I
always placed the journal on my bookshelves
looking forward to the next issue. Preparing
this paper, however, gave me the opportunity to read all the issues in the brief compass
JAMES M C CLELLAN, BENCHMARK , AND AN INFORMED PUBLIC
of a few days. By doing so, I formed several
impressions that stand out in sharp relief.
First, there is an underlying coherence to
all the issues McClellan edited—a coherence
I have attempted to demonstrate above. The
problems of judicial supremacy and judicial
activism and need to return to a jurisprudence of original intent were continually
addressed, but no less continually present
was his ongoing commitment to educating
the public. And the symmetry in this respect
is quite remarkable. The final point of the
last article of the last issue of Benchmark (an
article that he in fact wrote) perfectly echoed
the first point of his opening Editor’s Brief of
the premier issue: the need for a massive educational effort to inform the people of the
threat of an activist judiciary to their constitutional liberties and of the need to press
Congress into action. Creating an informed
public was the alpha and omega of his editorial enterprise.
Second, McClellan’s brilliance as a constitutional scholar shines through his words on
every page. Thomas M. Landess captured his
mastery of constitutional history and law best
when he wrote in the American Spectator: “Jim
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5
6
7
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10
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was the man to contact when you wanted to
know what a phrase or an amendment meant.
You just called him and took notes.”54
And third, Benchmark not only perfectly
captured McClellan’s scholarly command and
grasp of the principles of the Constitution; it
also displayed his optimism that its principles
would prevail and his deep-seated confidence that the people would recognize that
their rights are better secured by the people
themselves as they operate through the institutional structures of the Constitution than
by the decisions of their betters on the bench.
Were McClellan still with us, his optimism
and confidence would be sorely tested, as
judicial activism proceeds unabated and the
public’s understanding of and appreciation
for the principles of the Constitution regrettably continue to wane.
Nonetheless, despite our ever more
despairing prospects, our task—as was
McClellan’s—remains clear: we must continue to educate the public on these critical
matters with the same optimism and confidence—if not the same brilliance—as he
did. The current situation requires it; the
debt we owe to the Framers demands it.
George Carey and James McClellan, The Federalist (Indianapolis: Liberty Fund, 2001).
Russell Kirk and James McClellan, The Political Principles of Robert A. Taft (New York: Fleet Press, 1967).
James McClellan, Joseph Story and the American Constitution: A Study in Political and Legal Thought with Selected Writings
(Norman: University of Oklahoma Press, 1970; 2nd edition, with new foreword by Stephen B. Presser, 1990).
James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government. Rev. 3rd
ed. (Indianapolis: Liberty Fund, 2000).
James McClellan, Editor’s Brief, Benchmark: A Bimonthly Report on the Constitution and the Courts, Premier Issue (Fall 1983): 1.
Ibid., 1–2
Ibid., 1.
Ibid., 2.
Ibid., 1.
Ibid., 2.
James McClellan, Review of the Reviews, Benchmark 2, nos. 3 & 4 (May–August 1986): 200.
James McClellan, “The New Liberty of Contract Under the Thirteenth Amendment,” Editor’s Brief, Benchmark 3, no. 6
(November–December 1987): 367. Emphases in the original.
McClellan, Review of the Reviews, Benchmark 2, nos. 3 & 4 (May–August 1986): 280–81.
The contributors, many of whom contributed multiple times, included the following—they are arranged alphabetically by
field and are identified by their titles at the time of their contributions; if they contributed more than once, the total number
of their contributions is found in parentheses: Public Servants: John Agresto, Assistant Chairman, National Endowment for
the Humanities; Robert D’Agostino, Assistant Attorney General of the United States; Frederic N. André, Vice Chairman,
Interstate Commerce Commission; Morris S. Arnold, Judge, U.S. District Court, Western District of Arkansas; Terry Calvani,
Acting Chairman, Federal Trade Commission; Charles Cooper, Assistant Attorney General of the United States (2); Bruce
Fein, General Counsel, Federal Communications Commission (2); Mark S. Fowler, Chairman, Federal Communications
Commission; Orrin G. Hatch, Senator from Utah (2); Patrick Higginbotham, Judge, U.S. Court of Appeals, Fifth Circuit;
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24
25
26
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29
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Stephen Markman, Assistant Attorney General of the United States (2); Edwin Meese III, Attorney General of the United
States; Grover Rees III, Chief Justice of the High Court of American Samoa; William Bradford Reynolds, Assistant Attorney
General of the United States (3); and Terrance M. Scanlon, Chairman, Consumer Products Safety Commission. Historians:
Herman Belz, University of Maryland (2); Kermit Hall, University of Florida; James Hutson, Chief of the Manuscript
Division, Library of Congress; Forrest McDonald, University of Alabama; and William E. Nelson, New York University.
Political Scientists: Henry Abraham, University of Virginia; Stanley Brubaker, Colgate University; Francis Canavan,
Fordham University; George Carey, Georgetown University (3); William Connelly, Washington and Lee University; Morton
Frisch, Northern Illinois University; Eugene W. Hickok, Dickinson College (5); William Kristol, Harvard University; Gary
McDowell, Tulane University (6); Wallace Mendelson, University of Texas; Richard Morgan, Bowdoin College (2); David
O’Brien, University of Virginia; Timothy O’Rourke, University of Virginia; Ralph A. Rossum, Claremont McKenna College
(4); and Michael Zuckert, Carleton College. Law Professors: John S. Baker Jr., Louisiana State University; James E. Bond,
University of Puget Sound; Gerard V. Bradley, University of Illinois; Lea Brilmayer, Yale University; Gerald Dunne, St. Louis
University (2); Jules Gerard, Washington University (3); Robert W. Gordon, Stanford University; Lino Graglia, University of
Texas (3); William F. Harvey, Indiana University; Dennis J. Hutchinson, University of Chicago; Philip B. Kurland, University
of Chicago; Stephen B. Presser, Northwestern University; and Charles Rice, University of Notre Dame (4). Other Notables:
M. E. Bradford, Professor of English, University of Dallas; Ernest van den Haag, Professor of Jurisprudence and Public Policy,
Fordham University; and Russell Kirk, author of The Conservative Mind.
Craig Stern, “Judging the Judges: The First Two Years of the Reagan Bench,” Benchmark 1, nos. 4 & 5 (July–October 1984).
Ibid., 5.
Bruce Fein, “October Term 1983: Hinge Year in Constitutional Jurisprudence,” Benchmark 1, no. 3 (May–June 1984): 1.
“The 1986–87 Term of the Supreme Court,” Benchmark 3, nos. 4 & 5 (July–October 1987): 213–72.
Charles Rice, “Introduction: The 1986–87 Term of the Supreme Court,” Benchmark 3, nos. 4 & 5 (July–October 1987): 216.
Lino Graglia, “On Equal Protection of the Laws: The Fraudulent ‘Remedy’ Rationale for ‘Affirmative Action,’ ” Benchmark 3,
nos. 4 & 5 (July–October 1987): 264.
James McClellan, “A Lawyer Looks at Rex Lee,” Editor’s Brief, Benchmark 1, no. 2 (April–March 1984): 1.
Ibid., 2.
Ibid., 14.
Ibid., 16.
Review of the Reviews, Benchmark 2, nos. 3 & 4 (May–August 1986): 200. See also, for example, his “Review of the Reviews,”
Benchmark, Premier Issue (Fall 1983): 48, in which McClellan writes: “For those desiring a defense of raw judicial power at
its purest, Samuel Estreicher’s “Congressional Power and Constitutional Rights: Reflections on the Proposed ‘Human Life’
Legislation” [in the 1982 Virginia Law Review] is must reading.”
Paul Peterson, “James Madison and the Constitution,” Editor’s Introduction, Benchmark 3, nos. 1 & 2 (January–April 1987):
1.
“Tribute to Raoul Berger,” Benchmark 3, nos. 4 & 5 (July–October 1987): 183–212.
Charles J. Cooper, “Raoul Berger, Constitutionalist,” Benchmark 3, nos. 4 & 5 (July–October 1987): 184.
“The Judicial Record of Judge Robert H. Bork: A Constitutional Inquiry,” Benchmark 3, no. 3 (May–June 1987): 119.
Ibid., 125.
Ibid., 120.
Ibid., 121.
Ibid., 125.
Ibid., 121.
“Laurence Tribe and the Politics of Constitutional Law,” Benchmark 4, no. 2 (Spring 1990).
Ibid., 99.
Ibid., 100.
Ibid., 102.
Ibid., 103.
“Judicial Activism in the States: The California and Texas Courts,” Benchmark 2, nos. 3 & 4 (May–August 1986): 109–84.
“Judicial Activism in the States,” Benchmark 4, no. 1 (Winter 1988): 3–76.
Ibid., 4.
A pettifogger is defined as one who pretends to be a lawyer but who possesses neither knowledge, law, nor conscience. It should be
noted that McClellan once varied the title of the award and conferred on Laurence Tribe the “Pettifogger of the Year” Award.
“Pettifogger of the Month: George Howard, Jr.,” Benchmark, Premier Issue (Fall 1983): 45.
“Pettifogger of the Month: John F. Grady,” Benchmark 1, no. 1 (January–February 1984): 58.
“Pettifogger of the Month: Milton I. Shadur,” Benchmark 1, no. 6 (November–December 1984): 60.
“Pettifogger of the Month: Arlen Specter,” Benchmark 2, no. 1 (January–February 1986): 56.
“Pettifogger of the Month,” Benchmark 2, nos. 3 & 4 (May–August 1986): 217.
“Pettifogger of the Month,” Benchmark 2, nos. 5 & 6 (September–December 1986): 337.
“Pettifogger of the Year: Laurence Tribe,” Benchmark 4, no. 2 (Spring 1990): 214.
See Miscellaneous Reports, Benchmark, Premier Issue (Fall 1983): 25; “Ghost of Jefferson Haunts Roscoe Pound Conference
on Separation of Powers,” ibid., 43–44; “Review of the Reviews,” ibid., 46, reviewing Ralph A. Rossum, “Congress, the
Constitution, and the Appellate Jurisdiction of the Supreme Court: The Letter and Spirit of the Exceptions Clause,” William
and Mary Law Review 24, no. 3 (1983): 385; and Review of the Reviews, Benchmark 1, no. 1 (January–February 1984): 49–54,
reviewing “Symposium: Congressional Limits of Federal Court Jurisdiction,” Villanova Law Review 27, no. 5 (1982): 893.
James McClellan, “Kicking the Amendment Habit,” Editor’s Brief, Benchmark 1, no. 1 (January–February 1984): 2.
McClellan thought there was something wrong with amending the Constitution to restore its original meaning, i.e., to correct
judicial error. “We should resist efforts to add amendments to our fundamental law to correct misinterpretations rendered by
the Supreme Court. At the very least, such amendments tend to wink at judicial supremacy, and color the Court’s usurpations
with the tinge of legitimacy.” It should be stressed, however, that McClellan was not opposed to amendments in general. For
example, he strongly favored a Balanced Budget Amendment, and when the requisite two-thirds of the state legislatures were
on the verge of calling for a convention to consider the adoption of such an amendment, he published Grover Rees’s “The
Amendment Process and Limited Constitutional Conventions” (Benchmark 2, no. 2 (March–April 1986): 66–108) to clarify
the many questions surrounding the constitutional convention process.
Miscellaneous Reports, Benchmark 2, nos. 5 & 6 (September–December 1986): 304–6.
Thomas H. Landess, “James McClellan, RIP,” American Spectator 38, no. 2 (March 2005): 65.