IJ’s Decade of Making a Difference

May 2001

IJ’s Decade of Making a Difference

By Douglas W. Kmiec

The Institute for Justice is one of those few places that fully lives up to its name.  Indeed, the name b ears an uncanny and deserved similarity to The Institutes of Justinian, the treatise of the ancient Roman emperor who defined justice as embodying two principles: “the constant and perpetual will to render to each man what is his own” and treating equals equally.

Doug Kmiec has been a part of IJ since its creation 10 years ago, teaching at the annual Law Student Conferences.

IJ describes itself as libertarian in orientation, but I submit the above definitions are equally, perhaps even more in keeping, with its operational philosophy.  Before I illustrate that, another prefatory word is merited because IJ is unlike the vast majority of think tanks and legal defense funds that populate the environs of Washington D.C. in two distinct ways.

First, while IJ does a tremendous amount of good old-fashion, common-sense thinking, it is neither abstract nor unengaged.  The seeds for the Institute go back to a predecessor incarnation that used the terminology “applied jurisprudence.”  These are scary words to an academic like me.  After all, there is plenty of truth to the supposition that academics are those “who cannot do.”  If scholars were candid, they would tell you that the complexities of fact and the potential disappointments of the human mind and spirit embodied in much litigation is just too threatening to the neatly patterned lives of the university, and so, “practice” not only does not make perfect, it is evaded.

So people like Chip and Clint, who boldly seek to take coherent first principle and actually apply it, are rarities—and as I say, scary people.  Yet, by sheer force of personality and good will, they prompt even us scholar-types to put down our red pencils every now and then, and truly help someone live, rather than just talk about, the ideals of personal liberty.  More importantly, summer after summer, the IJ staff gathers some of the best law student minds in the nation and challenges them to make a difference—to reform the law toward human freedom by being willing to act on the noble motivations that brought many of these young men and women to law school in the first place.  When IJ’s summer conference is finished, more than a few eyes have been opened, and the chances of winning a just result in the courts, including the court of public opinion, has gone up exponentially for generations to come.

IJ’s clients are the vast invisible multitudes who for years have suffered the barriers of government regulation in silence or tolerated the inequities of public school monopolies with deferential, but undeserved, respect.

Second, IJ’s modus vivendi becomes even more notable when first principle–especially conservative first principle–is used to champion the causes of those who not only would be as leery of public interest litigation as professors, but even less likely to be the beneficiaries of it.  These unseen citizens do not come with ready-made, banner headline civil rights causes.  Nor are they so poor as to merit the usual attention of the media or legal aid societies.  No, IJ’s clients are the vast invisible multitudes who for years have suffered the barriers of government regulation in silence or tolerated the inequities of public school monopolies with deferential, but undeserved, respect.  Yet, with their IJ-lawyer champions, these good Americans, whether long to the nation or recent emigre, have too much initiative to be held back.  What’s more, they have too much integrity to let ill-fitting political labels blind them to sound ideas or deny them economic freedom.

Let me illustrate just a small glimpse of IJ’s work under the twin rubric of justice as defined by Justinian.

Render To Each What Is His Own

IJ is a defender of property rights.  Some defend property out of the simple exponent of acquisition; what’s mine is mine, now you get yours.  This coarse formulation is not IJ’s calling.   Property to IJ is a human right, embodying in physical resource who we are and who we hope to be.  Whether it is the small shopkeepers who have the temerity to “obstruct” a bureaucratic planner’s dream of an entertainment complex in Pittsburgh or the simple desire of the modest home and business owners in New London, Connecticut, not to be sacrificed to the wishes of a large pharmaceutical interest seeking to build a private health club wielding public power, IJ is there with a straightforward message:  Justice demands that those already here in residence, whether low-income resident or long-time neighborhood merchant, be given their due.  True, the Supreme Court may have read the “public use” requirement out of the Takings Clause, but the IJ lawyers and staff—these champions of human liberty have not.

Treat Equals Equally

At the core of IJ’s work lies this maxim, and nowhere is it more evident than in the Institute’s ceaseless efforts to have economic liberties treated with equal dignity; to, in short, have the right to pursue a lawful occupation recognized as our founders knew it—a fundamental civil right.  Again, it has been IJ that has vindicated this principle by illustrating that the people most harmed by regulation are those of modest means; ironically, the very persons regulation is said to benefit.  Whether it be the insupportable limitation of taxi medallions or licenses or the imposition of irrational medical school-like qualifications on those in the corner hair braiding shop or even those seeking to sell caskets at moderate prices, IJ is there putting law into action and giving the legal issue a human countenance.  So too, the Institute has led the fight for school choice, working with legislator and court alike, to secure for parents the most cherished right of all:  the right to direct the upbringing of their children–a right that can only be vindicated for every parent if the contributions to the general education fund are not selectively used to finance a class of favored schools.

Perhaps, to some, saving a corner store or opening access to a taxi license or even sustaining a small voucher program may seem inconsequential.  It is not.  Just ask the residents of Fort Trumbull who haven’t been evicted to make way for a health club or Ivy Chambers, whose 10-year-old has escaped the violence and disregard of an urban public school with a $1,500 voucher in Cleveland’s pilot program.  Just ask those who have marveled at how, in but 10 short years, the Institute has almost single-handedly aided the Supreme Court to understand that nothing in the Establishment Clause precludes treating public and private schools equally so long as funds are guided by the private and independent choices of parents.  Just ask those who thought the constitutional security of property forsaken or economic “privileges and immunities” beyond resuscitation.  Just ask advocates of natural law originalism and natural rights, like me, whether it is not only befitting to contemplate justice, but also to do it.

Indeed, it is, and IJ has brought us to these just results in scarcely ten years.  Let it be ten times ten.

Douglas W. Kmiec is Caruso Family Chair and Professor of Constitutional Law at Pepperdine University