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In 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 Hampden-Sydney 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 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, “pre-occupied 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 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 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
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As 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 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 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 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 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. 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 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 public-funded 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 state-court 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 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.
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
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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 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 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. ♦
Ralph A. Rossum is Salvatori Professor of American Constitutionalism at Claremont McKenna College.
1 George Carey and James McClellan, The Federalist (Indianapolis: Liberty Fund, 2001).
2 Russell Kirk and James McClellan, The Political Principles of Robert A. Taft (New York: Fleet Press, 1967).
3 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).
4 James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government. Rev. 3rd ed. (Indianapolis: Liberty Fund, 2000).
5 James McClellan, Editor’s Brief, Benchmark: A Bimonthly Report on the Constitution and the Courts, Premier Issue (Fall 1983): 1.
6 Ibid., 1–2
7 Ibid., 1.
8 Ibid., 2.
9 Ibid., 1.
10 Ibid., 2.
11 James McClellan, Review of the Reviews, Benchmark 2, nos. 3 & 4 (May–August 1986): 200.
12 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.
13 McClellan, Review of the Reviews, Benchmark 2, nos. 3 & 4 (May–August 1986): 280–81.
14 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; 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.
15 Craig Stern, “Judging the Judges: The First Two Years of the Reagan Bench,” Benchmark 1, nos. 4 & 5 (July–October 1984).
16 Ibid., 5.
17 Bruce Fein, “October Term 1983: Hinge Year in Constitutional Jurisprudence,” Benchmark 1, no. 3 (May–June 1984): 1.
18 “The 1986–87 Term of the Supreme Court,” Benchmark 3, nos. 4 & 5 (July–October 1987): 213–72.
19 Charles Rice, “Introduction: The 1986–87 Term of the Supreme Court,” Benchmark 3, nos. 4 & 5 (July–October 1987): 216.
20 Lino Graglia, “On Equal Protection of the Laws: The Fraudulent ‘Remedy’ Rationale for ‘Affirmative Action,’ ” Benchmark 3, nos. 4 & 5 (July–October 1987): 264.
21 James McClellan, “A Lawyer Looks at Rex Lee,” Editor’s Brief, Benchmark 1, no. 2 (April–March 1984): 1.
22 Ibid., 2.
23 Ibid., 14.
24 Ibid., 16.
25 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.”
26 Paul Peterson, “James Madison and the Constitution,” Editor’s Introduction, Benchmark 3, nos. 1 & 2 (January–April 1987): 1.
27 “Tribute to Raoul Berger,” Benchmark 3, nos. 4 & 5 (July–October 1987): 183–212.
28 Charles J. Cooper, “Raoul Berger, Constitutionalist,” Benchmark 3, nos. 4 & 5 (July–October 1987): 184.
29 “The Judicial Record of Judge Robert H. Bork: A Constitutional Inquiry,” Benchmark 3, no. 3 (May–June 1987): 119.
30 Ibid., 125.
31 Ibid., 120.
32 Ibid., 121.
33 Ibid., 125.
34 Ibid., 121.
35 “Laurence Tribe and the Politics of Constitutional Law,” Benchmark 4, no. 2 (Spring 1990).
36 Ibid., 99.
37 Ibid., 100.
38 Ibid., 102.
39 Ibid., 103.
40 “Judicial Activism in the States: The California and Texas Courts,” Benchmark 2, nos. 3 & 4 (May–August 1986): 109–84.
41 “Judicial Activism in the States,” Benchmark 4, no. 1 (Winter 1988): 3–76.
42 Ibid., 4.
43 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.
44 “Pettifogger of the Month: George Howard, Jr.,” Benchmark, Premier Issue (Fall 1983): 45.
45 “Pettifogger of the Month: John F. Grady,” Benchmark 1, no. 1 (January–February 1984): 58.
46 “Pettifogger of the Month: Milton I. Shadur,” Benchmark 1, no. 6 (November–December 1984): 60.
47 “Pettifogger of the Month: Arlen Specter,” Benchmark 2, no. 1 (January–February 1986): 56.
48 “Pettifogger of the Month,” Benchmark 2, nos. 3 & 4 (May–August 1986): 217.
49 “Pettifogger of the Month,” Benchmark 2, nos. 5 & 6 (September–December 1986): 337.
50 “Pettifogger of the Year: Laurence Tribe,” Benchmark 4, no. 2 (Spring 1990): 214.
51 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.
52 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.
53 Miscellaneous Reports, Benchmark 2, nos. 5 & 6 (September–December 1986): 304–6.
54 Thomas H. Landess, “James McClellan, RIP,” American Spectator 38, no. 2 (March 2005): 65.