Schatz's ignorance of our Anglo-American legal heritage illustrates problem with government

Schatz's ignorance of our Anglo-American legal heritage illustrates problem with government
© Greg Nash

The web has been ablaze over the ignorance displayed by Senator Brian SchatzBrian Emanuel SchatzOvernight Energy: Warren bill would force companies to disclose climate impacts | Green group backs Gillum in Florida gov race | Feds to open refuge near former nuke site Warren wants companies to disclose more about climate change impacts Congress just failed our nation’s veterans when it comes to medical marijuana MORE (D-Hawaii), who showed himself unaware of the Anglo-American legal heritage. Schatz revealed his lack of knowledge by mistaking Attorney General Jeff Session’s reference to that heritage for a racist dog whistle.

For those who have been living on Pluto — or serving in Congress — the phrases “Anglo-American heritage” and “Anglo-American legal system” are standard ways of referring to the jurisprudence America inherited from England. To a considerable extent, we still share that jurisprudence with our mother country. The Constitution itself is filled with English legal terms (such as habeas corpus, and privileges and immunities) that cannot be fully grasped without understanding the English heritage. Many, if not most, states — including Schatz’s state of Hawaii — have constitutional provisions or “reception statutes” formally adopting the common law of England.

If Schatz’s comment were unique, it would simply mark him as uniquely unfit to be a lawmaker. Unfortunately, in recent years other top officials have revealed similar deep ignorance. By this I mean ignorance not merely of academic or esoteric facts but of matters central to an officeholder’s responsibilities — and sometimes central to citizenship itself.

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Readers may recall that in 2010 a reporter asked U.S. Rep. John ConyersJohn James ConyersConservative activist disrupts campaign event for Muslim candidates Michigan Dems elect state's first all-female statewide ticket for midterms Record numbers of women nominated for governor, Congress MORE (D-Mich.) what provision of the Constitution supported ObamaCare’s individual insurance mandate. A video camera caught Conyers’ response:

 

Under several clauses. The good and welfare clause, and a couple others. All the scholars, all the constitutional scholars that I know— I’m chairman of the Judiciary Committee, as you know — they all say there’s nothing unconstitutional in this bill. 

Of course, the Constitution contains no “good and welfare clause.” What is just as disturbing is that Conyers apparently did not know that legal scholars had issued constitutional warnings about ObamaCare on several fronts, including its mandates on the states and the procedure Congress used in adopting it. (Some of these warnings were later vindicated by the Supreme Court.) 

As Conyers observed, he was then chairman of the House Judiciary Committee. According to its website, that committee “has been called the lawyer for the House of Representatives because of its jurisdiction over matters relating to the administration of justice in federal courts, administrative bodies, and law enforcement agencies.” Because the Constitution is the federal government’s basic rule book, the committee is deeply immersed in constitutional issues. Conyers was not only its chairman; he had served on the committee for 45 years!

Educated citizens who enter politics eventually learn that deep ignorance is not unusual among elected officials. To idealists, the discovery can be a shock.

It was a shock to me. As a Montana political activist and candidate during the 1990s, I was stunned to learn that the incumbent Republican governor did not know whether the state budget he had approved was smaller or larger than the previous budget. He also was uninformed of the contents of other major bills he had signed into law. And after four years in office supposedly dealing with education issues, his second lieutenant governor still had no clue what a charter school was.

Deep ignorance is not limited to matters of law and policy. The “you didn’t build that” comments in 2012 by President Obama and Senator Elizabeth WarrenElizabeth Ann WarrenAnother recession could hit US in 2019, says credit union association chief Warren says vote should be delayed, asks what Kavanaugh is hiding Kavanaugh hires attorney amid sexual assault allegations: report MORE (D-Mass.) represent a case in point. Claiming an entrepreneur did not build his business because he used pre-existing resources is like saying to an employee that he didn’t earn his salary because the employer provided the job. The comment reveals fundamental unawareness of how creativity and effort operate in a free enterprise context. This is a risk of electing people who have little or no private sector experience.

To be sure, deep ignorance is not the biggest problem in government right now. A more basic problem is that government has gotten too massive for officials to do their jobs, even if they all had the extraordinary knowledge and capacity of, say, the late Sen. Daniel Patrick Moynihan (D-N.Y.). Still, electing ignorant people to office aggravates the federal dysfunction so concerning to most Americans.

Rob Natelson is a retired constitutional law professor and a senior fellow in constitutional jurisprudence at Colorado's Independence Institute (@i2idotorg); the Illinois-based Heartland Institute; and the Montana Policy Institute. He is the author of The Original Constitution: What It Actually Said and Meant.