Classical Legal Thought II

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					Today’s Lecture:

Classical Legal Thought

Number:

7

Lecture Organization:
• Class Announcements • Brief Review and Summary Classical Legal Thought • The ugly cases

• Ideology and Judging
• A priori jurisprudence • The Logic of Contracts

Time

Class Announcements

Reading • Lochner (pay attention to Holmes dissent!) • Wilson I (mailed to you) Homework Question:
For Lochner, answer 2 questions: (1) what is the basis of the majority decision? On what is it founded? Why does it purport to be required? (2) what is the basis of Holmes’ decision? On what does it purport to be founded? (3) what is the basis of Harlan’s decision?

Class Announcements

paper -- will be handing out a paper topic next week. exam -- exam will be Oct. 12 cases on exam! Questions?

-- I can ask you about anything in the cases – it’s fair game.

Time

Review

Classical Legal Thought

Classical legal thought
1. “law” (as in judging) is its own science 2. composed of: A) sacred tradition (Blackstonian wing) B) analytic “logic” (Langdellian wing) 3. law is like mathematics, geometry or physics:

A) Answers pre-exist the problems;
B) The craft is self-contained (autonomous)

Note How these epochs correlate with the epochs for the use of statutory power Statutes: Epoch-1

Epoch-2

Epoch-3 Machine Makes Right Epoch-B Epoch-C

Might Makes Right “Justification:”

Divine Right Epoch-A

*

God

“Nature”

Science

How Classical Legal Thought Works

Important to keep a few things in mind Only a Genre

One period
cryptic Platitude, maxim

Another Period
Bad Philosophy Syllogisms, if-then logic, either/or statements, analogical reasoning

Hercules and the Syllogism

Starting point 1. The Constitution is supreme law;

2. It is more important than a mere statute;
3. Courts are asked to interpret laws;

Key premise!

Functional Logic

4. We can’t do this if we ignore the supreme law. True by Logic 5. Therefore, we are the ones who interpret the Constitution. Tremendous Conclusion

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. ..

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

Time

The Ugly Cases

Intro -- remember that classical legal thought was a decision style in the 1800s that relied upon a priori use of tradition as well as self-contained reasoning -- we haven’ really looked at the use of a priori tradition, yet.

-- That’s unfortunate, because it probably was more prevail ant.
-- Marshall’s style was a bit of an anomaly – the truth is that no one could really do what he did. (He is sort of the Scalia of his era – not in politics, but perhaps in formalism or legal epistemology. At least there is a resemblance).

The Ugly Cases

Dred Scott Quick summary of facts -- Slave suing for his freedom. Diversity jurisdiction. Must be a citizen from two states. Summary of the opinion’s “logic”

Dred Scott
Time

Great Tradition says: At the time of the founding, the legal status of African Americans was such that they were bought and sold as property. No politics involved here: Question: Question: “It is not the province of the court to decide upon the justice or injustice, the policy If this really were or be wrong in terms of What mightimpolicy, of these laws. ... true, which it is (not morality) The duty of this courtlegal epistemologyinstrument they is to interpret the not, is that the proper way to this on have framed, with thewith this? How can obtainharm best lights we mightinterpret the the Constitution? subject, and to administer mission of law itself? Howto its the it as we find it, according true intent and meaning when injure the idea of law? might it it was adopted.”
The Culture is not Stagnant; it is dynamic, organic

The Ugly Cases

Brandwell (1873) Quick summary of facts -- Myra Brandwell wants to be a lawyer -- Her husband is a judge and she is be editor of a legal It should the Due Process and periodical Protection*. Equal that is rather Question: successful Remember, the issues in

Answer:

What is has studied law and the legal issue are American jurisprudencein has -- She passed all of the a textual always the case?exams. She is framed as just as qualified to be a lawyer matter
*(explain Priv. & Imm. Clause)

as any male.

Brandwell
The opinions of Justices Field, Bradley, and Swayne

The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.

Brandwell
The opinions of Justices Field, Bradley, and Swayne

The civil law, Law Classical Natural as well as nature herself, has always recognized a wide Rhetoric difference in the respective spheres and destinies of
man and woman. Man is, or should be, woman's protector and 1. defender. to nature a and proper timidity and delicacy which Appeals The natural priori. Nature female belongs to thesays. sex evidently unfits it for many of the (Note: this actually life. occupationsis of civil old The constitution of the family school even which organization, for the is founded in the divine ordinance, as 1800s) well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of 2. Note the attempt at logic womanhood. The harmony, not to say the identity, of interests or argumentation within and framework of the the views which belong, or should belong, to the family institution sacred naturalto the idea of a woman adopting a appeal to is repugnant distinct and independent career from that of her husband. order

Brandwell
The opinions of Justices Field, Bradley, and Swayne

So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

Brandwell
The opinions of Justices Field, Bradley, and Swayne

Other Classical Rhetoric sentiment in the founders of the common So firmly fixed was this

law that it became a maxim of that system of jurisprudence that a 1. Appeals to precedent woman had no legal existence separate from her husband, who wasand the common law and representative in the social state; regarded as her head and, notwithstanding some recent modifications of this civil 2. The use of an important status, many of the special rules of law flowing from and point of logic. If you dependent enter this cardinal principle still exist in full force in upon cannot most States. how can you contracts, One of these is, that a married woman is incapable, without her husband's consent, of making contracts be a lawyer? which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

Brandwell
The opinions of Justices Field, Bradley, and Swayne

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.
Neanderthal Man
Time

1. Medieval form of natural law

• Ideology and Judging Question: If you say yes, answer this

(a) Was it wrong to use ideology?
(b) How is this different than what Marshall was doing when we asked the same question?

Question:

Did these justices vote their ideology?

Table of Premises Set-A
1. Women are different and unfit for many occupations (lawyer)

Time

Set-B
1. Legal tradition is against this 2. It violates the common law (precedent) 3. Women can’t enter Question: contracts, so they can’t Question: Question: practice law

2. Nature says that women should be in the home
3. The Creator says that women should be in the home

Question: IsHow using ideology simply not come Marshall looksto Question: premises Question: Question: Is it possible for being on the right side of sobe good but not allowed to Set-B, while IfWhichtrue, isare used only someone “neutral”between What is the history?true? If the justices had ones difference and being contracts, should don’t neutral and true, they dispositive, yet ideology is enterwould they have used set-B, two sets of premises? these stilllook so practice it? the to good? be allowed thing doing law? their ideology?

A-Priori Jurisprudence
Muller v. Oregon (1908) Quick summary of facts -- Women working overtime (explain)

Brandwell
The opinions of Justices Field, Bradley, and Swayne

“That a woman’s physical structure and the performance of maternal functions places her a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon her body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order too preserve the strength and vigor of the race.”

Brandwell
The opinions of Justices Field, Bradley, and Swayne

“That a woman’s physical structure and the performance of maternal functions places her a disadvantage in the struggle for subsistence is obvious. two things Notice This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the1. “Policy” argumentation medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to A- her injurious effects2.uponpriori body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order too preserve the strength and vigor of the race.”

A-Priori Jurisprudence
Wynehammer (1856) Quick summary of facts -- Prohibition (plain and simple) (New York court) Issue in the case -- Taking of property without Due Process -- Natural law reasoning ….

It is, then, I believe, universally admitted that when this law was passed intoxicating liquors, to be used as a beverage, were property in the most absolute and unqualified sense of the term; and, as such, as much entitled to the protection of the constitution as lands, houses or chattels of any description. From the earliest ages they have been produced and consumed as a beverage, and have constituted an article of great importance in the commerce of the world. In this country the right of property in them was never, so far as I know, for an instant questioned. In this state, they were bought and sold like other property; they were seized and sold upon legal process, for the payment of debts; they were, like other goods, the subject of actions at law; and when the owner died, their value constituted a fund for the benefit of his creditors, or went to his children and kindred, according to law or the will of the deceased.

It is, then, I believe, universally admitted that when this law was passed intoxicating liquors, to be used as a beverage, were property in the most absolute and unqualified sense of the term; and, as such, as much entitled to theBasic Point protection of the constitution as lands, houses or chattels of any description. From the earliest 1. been produced and consumed as a ages they have Alcohol is a commodity & a constituted an article of great beverage, and havepossession importance in the commerce of the world. In this country the right of property in them was never, so far as I know, for an instant questioned. In this state, they were bought and sold like other property; they were seized and sold upon legal process, for the payment of debts; they were, like other goods, the subject of actions at law; and when the owner died, their value constituted a fund for the benefit of his creditors, or went to his children and kindred, according to law or the will of the deceased.

The foundation of property is not in philosophic or scientific speculations, nor even in the suggestions of benevolence or philanthropy. It is a simple and intelligible proposition, admitting, in the nature of the case, of no qualification, that that is property which the law of the land recognizes as such. It is, in short, an institution of law, and not a result of speculations in science, in morals or economy. Basic Point 1. That the law protects property isn’t debatable 2. It is known A priori

… we are to remember that all property is equally sacred in the view of the constitution, and therefore that speculations as to its chemical or scientific qualities, or the mischief engendered by its abuse, have very little to do with the inquiry. In a word, that which belongs to the citizen in the sense of property, and as such has to him a commercial value, cannot be pronounced worthless or pernicious, and so destroyed or deprived of its essential attributes. Sir William Blackstone, who wrote of the laws of England nearly a century ago, said: "So great is the regard of the law for private property, that it will not authorize the least violation of it, no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might, perhaps, be extensively beneficial to the public, but the law permits no [legislature] to do this without the consent of the owner of the land … [unless] giving him a full indemnity and equivalent for the injury thereby sustained." (1 Bl. Com., 139.)

… we are to remember that all property is equally sacred in the view of the constitution, and therefore that speculations as to its chemical or scientific qualities, or the mischief engendered by its abuse, have very little to do with the inquiry. InPoint Basic a word, that which belongs to the citizen in the sense of property, and as such has to him a commercial value, cannot be pronounced worthless or 1. No discrimination against pernicious, and so destroyed or deprived of its essential beer attributes. Sir William Blackstone, who wrote of the laws of England nearlyThe century ago,says no "So great is the 2. a great tradition said: regard of the law for property without taking private property, that it will not authorize the least violation of it, no, not even for the compensation general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might, perhaps, be extensively beneficial to the public, but the law permits no [legislature] to do this without the consent of the owner of the land … [unless] giving him a full indemnity and equivalent for the injury thereby sustained." (1 Bl. Com., 139.)

It has been urged upon us, that the power of the legislature is restricted, not only by the express provisions of the written constitution, but by limitations implied from the nature and form of our government; that … the right to enact such laws is … void, as against the fundamental principles of liberty, and against common reason and natural rights. High authority, certainly, has been cited to show that laws which, although not specially prohibited by written constitutions, are repugnant to reason, and subvert clearly vested rights, are invalid, and must so be declared by the judiciary.

It has been urged upon us, that the power of the Classical Natural Law legislature is restricted, not only by the express provisions of the written constitution, but by limitations 1. The Legislature is limited implied from the nature and form of our government; that … the right to enact such laws is … void, as against 2. By Nature and Right the fundamental principles of liberty, and against Reason common reason and natural rights. High authority, certainly, has been cited to show that laws which, 3. (but only because there is a although not specially prohibited by written Due Process clause) – constitutions, are repugnant to reason, and subvert important caveat clearly vested rights, are invalid, and must so be declared by the judiciary.

Question: Question: Question: Question: Do you agree with the Compare this the ruling to ruling? Was bad to base a Does these premises Is it good or case practice Marshallcorrect? they stack – restraint?” Should “judicialhow do case on syllogistic and a up judges do that? priori reasoning?
-- used syllogistic reasoning that was informed by tradition 1. Alcohol is property 2. The Law protects property 3. It does not matter that beer is different from real estate 4. The due process clause does not allow for prohibition Great Tradition says so Great Tradition says so “Logic” or rhetoric

The conclusion

A-Priori Jurisprudence
Loving v. Virginia (1856) Quick summary of facts -- Interracial marriage Issue in the case -- Equal Protection and Due Process

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed Time by the State.

The Logic of Contracts
What is a contract? --. Answer is analytical; “logical” -- That which is necessary “essence of a contract.” -- Hence, contracts are:

A MUTUAL EXCHANGE OF DETRIMENT
“God Principle”

The Logic of Contracts
Turn it into a logic -- turn the necessary essence (God Principle) into an analytical formulation. (into a formalism).

1. OFFER 2. ACCEPTANCE 3. CONSIDERATION
mutual detriment

Question:
How is this different from the Blackstonian version of whether there is a contract? (The version of “the elders”)? 1. OFFER 2. ACCEPTANCE 3. CONSIDERATION
mutual detriment

FORMAT
-- Logic over maxim

“He who hath secured his expectation shall have his due” (no more platitudinous decisions)

1. OFFER 2. ACCEPTANCE 3. CONSIDERATION
mutual detriment

Analyticity If it is not traditional that a contract would exist, does that mean it will if logic says it does?

-- Gay marriage? -- Prom Dates? -- Giving the bride away? -- Christmas presents? 1. OFFER 2. ACCEPTANCE 3. CONSIDERATION
mutual detriment


				
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