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Class Announcements
Study guide & Essay

   • Will be getting you a study guide soon (by Monday)
   • Your essay will be ready by Monday, too
2. Reading


     • Lochner (pay attention to Holmes dissent!)
          Today’s Lecture:




          Classical Legal Thought




Session


 6
Review and Introduction
Basic ideas

   The Constitution as “supreme law”

     • The ritual of passing a set of laws that codified
     “the fundamental law”
     • The Constitution as a “super statute”
     • The law for the lawmaking-process
Basic ideas

    How this differed from Bonham’s case

     • Instead of voiding a law for general reasons of
     inadequacy, you void it for clashing with other laws
     in the system.
     (You void it only if it can reasonably be said to
     violate a provision of the Constitution)
Basic ideas

   The Enlightenment’s Effect
   on American Government

      • You could build a machine for self governance
      • Machine would reflect the natural law of politics
      (If the universe was subject to natural laws or
      science, why not politics)
      The constitution represents this kind of thinking
Basic ideas

      Basic Principles of the
            Machine

      • It was hard to govern (hard to capture)
          -- People can win majorities all over the country
          and not be able to govern (take the thing over)
          (midterm elections)
      • checks & balances, separation of powers
      • Look what it does to the power over the statute
Powers A,   B, C, D, E, etc.     .. Whatever is left over
  Split into 2 chambers

           Congress
        House   Senate                            Senate
                                        HouseStates


   Fractured the power

            Federalism: two sets of governments
            each with distinct powers


                                                            12
Separation of Work Product




                        Jud
                    The King
                        Leg
                      Exec
               (absolute monarchy)




Order,
                      Statute        Precedent
Decree
Enforcing            Legislating      Judging
Historical Rationalizations For Statutory Power


Epoch-1        Epoch-2             Epoch-3




  Might         Divine              Machine
  Makes         Right               Makes
  Right                             Right

  Fear         Superstition        Engineering

(Rome)         (England)             (America)
               middle
               ages
  Remember This?
         Politics              “Law”

The statutory power   The justificatory power




       War                  Constitution

       Taxes                Common Law

       Police State
       Order
  Remember This?
         Politics                “Law”

The statutory power     The justificatory power
  Recurring Elections   Epistemology?
  Lobbying              A calculus of some
  Structured Conflict   sort?
       War                    Constitution

       Taxes                  Common Law

       Police State
       Order
                    King’s Old Power

              Popular sovereignty
 SOCIAL
CONTRACT


                 Elder’s Old Power?
             Fundamentals Codified in the
           Contract; Preserved by the elders?
      Introduction to Classical Legal Thought


Introduction

  -- the next step in our story is to develop America’s very first
  judicial style of opinion
  -- there is something called “classical legal thought”
  -- It refers to the type of decision-making style that
  American judges in the 1800s tended to utilize
  -- to understand this style of decision, we need to
  understand some basic points about history first …
      Introduction to Classical Legal Thought


The Next Step in Rationalizing Authority

  -- how intellectual culture comes to rationalize authority is
  going to change in the 1800s
  -- We are going to enter a new intellectual period

     moral sciences period
 Rationalizing Different Forms of Authority


Statutes:
          Epoch-1    Epoch-2      Epoch-3


          Might      Divine       Machine
          Makes      Right        Makes
          Right                   Right

“Justification:”     Epoch-A      Epoch-B     Epoch-C


            *         God        “Nature”     Science
                                 “Reason”
      Introduction to Classical Legal Thought


“Scientizing” judging
  -- the 1800s is going to see an effort to “scientize” judging
  (proclaiming judging is a science)
                                           Regime ideology!
     caution!

  -- what is called “science” in the 1800s and what passes for
  science is different than today.
  -- science is a growth term. The sense of it changes as time
  moves forward (or at least, it has done so).
  -- A Wittgensteinian approach is helpful: mostly, we want to
  understand this as a way of talking
       Introduction to Classical Legal Thought


“Moral Science”

    The idea of “moral science” developed in the 1800s. It held
   that proper moral reasoning was a science. You could take
   the science of morality in college
   The idea held that one could formulate correct conclusions
   through logical deduction and valid reasoning.
   A better term for the idea …
                                    Moral Formalism
       Introduction to Classical Legal Thought


“Moral Science”     more background info

   Moral Sciences Club at Cambridge:
      • Cambridge had a club called the Moral Sciences Club,
      formed in the late 1870’s
      • Implicit idea: when you sit around to make a proof in
      philosophy, you are doing a kind of science.
   Lot’s of things are said to be “scientized” in late 1800s:
      • “Home economics” (how to take care of a house)
      • anything that you systematically create rules for could
      be talked about as its own science
        Introduction to Classical Legal Thought


“Scientizing” judging

   -- The POINT: Judging is going to be called a science
   because it will be said to have
        • correct answers
        • a uniform, objective method for discovering the
        answers



 Time
           How Classical Legal Thought Works


-- First, let’s abbreviate it (CLT)
-- CLT says that judges find correct legal answers through two
basic sources of authority:
    (a) Sacred traditions (aka “the elders”)
    (b) “logic” or autonomous reasoning


                                              Question:
                                      How is this notion different
                                      from what Lord Coke said
                                       in Bonham’s case in the
                                            early 1600s?
How Different from
  Lord Coke’s
   approach?         0
                     0
                     0
        How Classical Legal Thought Works


The Tradition Wing

    William Blackstone
  -- Great English scholar and jurist
  -- argued that the common law that the judges were
  creating was only the recognition of the great, sacred
  customs and traditions
  -- presumably, judges did this through some kind of special
  craft or technique
  -- his famous quote
         How Classical Legal Thought Works


The Tradition Wing
Blackstone’s Famous Quote
    William Blackstone
   [The jurist is sworn] “to determine, not according to
. [The jurist is sworn] “to determine, not according to his own   own
    -- Great English according to the known known laws and
private judgment, butscholar and jurist the laws and customs of
private judgment, but according to
customs not that the not pronounce a the law, but a new
     land; of delegated to delegated to pronounce to maintain
the-- argued the land;common law thatnew judges were law,
but expound the old one. Yet the old one. Yet exception, where
and to maintain and expoundthis rule admits of this rule admits of
    creating was only the recognition of the great, sacred
the former where the former determination contrary toevidently
exception, determination is most evidently is most reason;
    customs and traditions
contrary to if it be clearly contrary to the divine law. But even in
much morereason; much more if it be clearly contrary to the divine
law. presumably, judges judges through judges kind ofpretend
    -- cases the such cases the subsequent some do not a new
suchBut even in subsequentdid this do not pretend to make special
to craft to technique
      but or a new law, but from misrepresentation. For it be
law,make vindicate the old oneto vindicate the old one if from
misrepresentation. For if it be found that absurd or decision
found that the former decision is manifestlythe former unjust, it is
    -- his absurd or unjust, it is declared, not that such a sentence
declared,famous quote sentence was bad law, but that it was not
manifestlynot that such a
was
law.”bad law, but that it was not law.”
         How Classical Legal Thought Works


The Tradition Wing
Blackstone’s Famous Quote
    William Blackstone
   [The jurist is sworn] “to determine, not according to
. [The jurist is sworn] “to determine, not according to his own   own
    -- Great English according to the known known laws and
private judgment, butscholar and jurist the laws and customs of
private judgment, but according to
customs not that the not pronounce a the law, but a new
     land; of delegated to delegated to pronounce to maintain
the-- argued the land;common law thatnew judges were law,
and to maintain and expoundthis rule admits of this rule admits of
but expound the old one. Yet the old one. Yet exception, where
    creating was only the recognition of the great, sacred
exception, determination is most evidently is most reason;
the former where the former determination contrary toevidently
    customs and traditionscontrary to just contrary the
much morereason;No Discretion;clearly findingto the divine
                      clearly
contrary to if it be much more if it be the divine law. But even in
law. presumably, one right answer judges kind ofpretend
    -- cases the such cases judges through some do not a new
                     judges the subsequent
suchBut even in subsequentdid this do not pretend to make special
law,make vindicate the old oneto vindicate the old one if from
      but or a new law, but from misrepresentation. For it be
to craft to technique
misrepresentation. For if it be found that absurd or decision
found that the former decision is manifestlythe former unjust, it is
    -- his absurd or unjust, it is declared, not that such a sentence
declared,famous quote sentence was bad law, but that it was not
manifestlynot that such a
was
law.”bad law, but that it was not law.”
         How Classical Legal Thought Works


The Tradition Wing
Blackstone’s Famous Quote
    William Blackstone
. [The jurist is sworn] “to determine, not according to his own
   -- Great English according to the known laws and customs of
private judgment, butscholar and jurist
     land; not delegated to pronounce a the law, but to maintain
the-- argued that the common law thatnew judges were
      expound the old one. Yet this admits of exception, where
and expound the old one. Yet this rulerule admits of exception,
   creating was only the recognition of the great, sacred
where the determination is most evidently contrary to reason;
the former former determination is most evidently contrary to
   customs and traditions
much more if it more if it be clearly contrary tolaw. But even in
reason; much be clearly contrary to the divine the divine law.
But--even in the subsequent judges through some kindpretend to
       cases such cases the subsequent judges do not of a new
such presumably, judges did this do not pretend to make special
make to technique but to vindicate the old For it be
   craft or new law,
law, but a vindicate the old one from misrepresentation. one if from
found that the former decision is manifestlythe former unjust, it is
misrepresentation. For if it be found that absurd or decision
   -- his absurd or unjust, it is declared, not that such a sentence
declared,famous quote sentence was bad law, but that it was not
manifestlynot that such a
was
law.”bad law, but that it was not law.”
         How Classical Legal Thought Works


The Tradition Wing
Blackstone’s Famous Quote
    William Blackstone
. [The jurist is sworn] “to determine, not according to his own
   -- Great English according law DOES lawswrong … of
private judgment, butscholar and jurist
                   But when to the known go and customs
     land; not delegated to pronounce a the law, but to maintain
the-- argued that the common law thatnew judges were
      expound the old one. Yet this admits of exception, where
and expound the old one. Yet this rulerule admits of exception,
   creating was only the recognition of the great, sacred
where the determination is most evidently contrary to reason;
the former former determination is most evidently contrary to
   customs and traditions
reason; much be clearly contrary to the divine the divine law.
much more if it more if it be clearly contrary tolaw. But even in
But--even in the subsequent judges through some kindpretend to
       cases such cases the subsequent judges do not of a new
such presumably, judges did this do not pretend to make special
make to technique but to vindicate the old For it be
   craft or new law,
law, but a vindicate the old one from misrepresentation. one if from
misrepresentation. For if it be found that absurd or decision
found that the former decision is manifestlythe former unjust, it is
   -- his absurd or unjust, it is declared, not that such a sentence
declared,famous quote sentence was bad law, but that it was not
manifestlynot that such a
was
law.”bad law, but that it was not law.”
                How Classical Legal Thought Works


       The Tradition Wing
       Blackstone’s Famous Quote
           William Blackstone Note: watch the language
       . [The jurist is sworn] “to determine, not according to his own
                                 game! (substitute the
          -- Great English scholar and jurist
       private judgment, but according to the known laws and customs of
                                 word judging for “law”)
           land; not delegated to pronounce a the law, but to maintain
       the-- argued that the common law thatnew judges were
       and expound the old one. Yet this rule admits of exception, where
       the former determination is most evidentlynever wrong!
                               True Judging the contrary to reason;
          creating was only the recognition of is great, sacred
          customs and traditions
       much more if it be clearly contrary to the divine law. But even in
          -- cases the subsequent judges through some kind of a new
       such presumably, judges did this do not pretend to make special
             cases the subsequent judges do not pretend to make a
       new law, vindicate the old one from misrepresentation. For if it be
       law, but tobut to vindicate the old one from misrepresentation.
          craft or technique
       found it be the former decision is manifestly is manifestly absurd
       For if that found that the former decision absurd or unjust, it is
          -- his it that such a
       declared,famous quote sentence suchbad law, but that itbad law,
       or unjust,notis declared, not that was a sentence was was not
       but that it was not law.”
       law.”
Time
        How Classical Legal Thought Works


The analytic wing
   Christopher Columbus Langdell
         How Classical Legal Thought Works


The “analytic” wing
    Christopher Columbus Langdell
   -- Dean of the Harvard Law School (1870-1895)
   -- He and others of this general time period (1850s-1900s)
   begin putting for the idea that judging (legal analysis) is a
   science.
   -- He invents the case book method
   -- students can extract the necessary components of a case
   decision (facts, holding, rationalization, rule of law, etc.)
   (by collecting this information, you will know how to decide
   the next case)
          How Classical Legal Thought Works


The professionalization of law school
-- It’s in this era when the practice of law becomes a profession
   The old way to become a lawyer
   -- you went to undergraduate school
   -- then, after graduation, you tried to find an apprenticeship
   -- a lawyer would show you the forms, pleadings, law
   books, statutes that you would need. He would show you
   how to use them
   --He wouldn’t do this like it was school; you would have to
   work in the office for a while (sometimes several years)
         How Classical Legal Thought Works


The professionalization of law school

  The old way to become a lawyer
   -- This relationship was a trade: the lawyer received free
   work or help; you received a legal education
   -- the apprenticeship also cost a fee (I think)
   -- once you completed it, you were examined by the judge
   or supreme court and were officially let into the profession
         How Classical Legal Thought Works


The professionalization of law school

  The new way

   -- Law is a science, like medicine.
   -- It must be professionalized.
   -- You go to undergraduate, then go to professional school
          How Classical Legal Thought Works


How does the “analytic” component work?
-- Notice I said that CLT had two components: sacred tradition
and autonomous logic
-- we have yet to understand what is mean by “autonomous
logic”
       What is it?
   -- syllogistic logic
   -- Analogical reasoning from case to case
   -- If-then and either/or statements
   -- necessary essences (platonic conceptualism)
   (in short, formalized or strict way of reasoning)
         How Classical Legal Thought Works


How does the “analytic” component work?

  Notice the assumptions here
   -- formalized reasoning can be objective
   -- that “truth” is external to the mind and can be
   demonstrated in analysis and proof.
         How Classical Legal Thought Works


If “law” is a science, what kind of science is it?

  Autonomous science
   -- law is like geometry
   -- discovering a rule of law is like discovering a rule of
   geometry or physics
   -- law is self contained. It is a “hard” science”
   -- THE MEANS (of deciding) ARE THE ENDS (of the
   decision)
   -- “law” is a kind of Algebra
                             Sometimes called “formalism.”
         How Classical Legal Thought Works


If “law” is a science, what kind of science is it?

  Autonomous science
   -- judges find or discover their conclusions; they do not
   make them up
   -- judging has NOTHING to do with POLITICS
     Caution: Advertisement Only
[law is] “a complete and autonomous system of logically
consistent principles, concepts and rules. The judge’s
     An ideology about law much like divine right
techniques were socially neutral, his private views
    We’ve judging enlightenment’s ideas than “nature”
irrelevant;taken the was more like findingabout making, a
matter of necessity rather than choice.”
    and have scientized it.
           How Classical Legal Thought Works


 Important to keep a few things in mind

   Only a Genre
   -- This is only a genre
   -- it is only a style of decision making for this period.
   -- think of it like music (e.g. “rockabilly”)

      One period                           Another Period
cryptic                       Bad Philosophy

          Platitude,      Syllogisms, if-then logic, either/or
          maxim           statements, analogical reasoning
         How Classical Legal Thought Works


Important to keep a few things in mind

  Two “Wings” to the Style



                                 Analytical
  “Tradition says”
                                   Style




A-priori format               • self contained reasoning
                         •the means are the end (“formalism”)
         How Classical Legal Thought Works


Let’s have a clear definition of terms

  -- For clarity’s sake, and because this will be on the exam,
  let’s give you formal definitions of this
  -- I want you to keep these two ideas separate …
         How Classical Legal Thought Works


Let’s have a clear definition of terms
                  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)
         How Classical Legal Thought Works


Let’s have a clear definition of terms


                Classical determinism
           1. one right, pre-existing answer
                  2. certainly justified
         3. only trained judges can access it
            4. they are not playing politics
Examples


1. Marbury v. Madison
         Marbury v. Madison


Facts:




                               Question:
                          What are the facts of
                              this case?
Facts of Case
                0
                0
                0
                 Marbury v. Madison


Facts:

  -- Federalists are in retreat; they have just lost to Jefferson
  -- They pack the courts with federalists on the way out the
  door. They appoint all sorts of new judges to the bench.
  -- But, some commissions don’t get delivered.
  -- Marbury never received his commission even though he
  was confirmed to be a judge
  -- He sues to get his commission
         Marbury v. Madison


Issue:




                              Question:
                         What is the issue in
                            the case?
Issue in Case?
                 0
                 0
                 0
                  Marbury v. Madison


Issue:

  -- The Congress had a law on the books that allowed the
  Supreme Court to grant a Writ of “Mandamus.”
  (explain what a Mandamus is. Explain equitable relief.
  Explain the use of the word “Writ”)
  -- But there is a problem with the Court issuing a
  mandamus
              Question:
         What is the problem?
Problem?
           0
           0
           0
                 Marbury v. Madison


Issue:

  -- The problem is that, in order to get one of these things,
  you first need to have a trial. The Supreme Court is not a
  trial court, it is an appellate Court.
                                              Question:*
                 Marbury v. Madison should Marshall go
                                  How
                                          about deciding the
                                        issue? How should he
Issue:                                 approach it as a Judge?

  -- The problem is that, in order to get one of these things,
               Consider a trial. The Supreme Court is not a
  you first need to have the Options:
  trial court, it is an appellate Court.
1. Great Traditions?
2. Follow precedent?
3. Follow original intent of the constitution?
4. Defer to the power center?
5. Go with what is most popular
6. Policy Engineering?
                  Marbury v. Madison


Marshall’s Approach

   -- He is going to reason his way to the result using “iron
   clad” logic (or at least trying to). No Maxim or Platitude
   -- Let’s examine Hercules’ decision
              Hercules and the Syllogism



                                          Starting point
1. The Constitution is supreme law;
                                               Key premise!
2. It is more important than a mere statute;

3. Courts are asked to interpret laws;     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.

       Question:
Is the decision correct?
Everyone
 Votes!
           1.   Yes, he is.     0
           2.   No, he is not   0
Issue in Case?
                 0
                 0
                 0
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.

                                        Question:
                               How is what Marshall does in
                               this case different from what
                               Coke did in Bonham’s case?
Issue in Case?
                 0
                 0
                 0
Examples


1. Marbury v. Madison

2. Wynehammer
Wynehammer (1856)

 Quick summary of facts
  -- Prohibition (plain and simple)
  (New York court)

                                      Question:
                         Would it be unconstitutional for
                        the government to outlaw liquor,
                                   and why?
Prohibition Legal?
                     0
                     0
                     0
Wynehammer (1856)

 Quick summary of facts
  -- Prohibition (plain and simple)
  (New York court)

  Issue in the case

  -- Taking of property without Due Process
  -- Watch the style of the decision’s 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
                Basic a word, that which belongs to the
with the inquiry. InPoint
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
                2. a great tradition said:
of England nearlyThe century ago,says no "So great is the
                   taking private property, that it will not
regard of the law for property without
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.
                                  Question:
                        How is this different from the
                        approach in Bonham’s case?

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.
different from
  Bonham?
                 0
                 0
                 0
      Question:                            Question:

Do you agree with the           Compare these premises to
ruling? Was the ruling          Marshall – how do they stack
       correct?                              up

 -- used syllogistic reasoning that was informed by tradition

 1. Alcohol is property                Great Tradition says so

 2. The Law protects property           Great Tradition says so

 3. It does not matter that beer is
    different from real estate          “Logic” or rhetoric

 4. The due process clause does
    not allow for prohibition           The conclusion
  Correct?

Compare it to
 Marshall’s     0
                0
                0
        Question:
Is it good or bad to base a
 case on syllogistic and a
      priori reasoning?

    -- used syllogistic reasoning that was informed by tradition

    1. Alcohol is property                Great Tradition says so

    2. The Law protects property           Great Tradition says so

    3. It does not matter that beer is
       different from real estate          “Logic” or rhetoric

    4. The due process clause does
       not allow for prohibition           The conclusion
Everyone
 Votes!
           1.   Great idea!        0
           2.   Sometimes yes,     0
                sometimes no
           3.   I’m not sure
           4.   Seems ridiculous
                                          Question:
                                Did the Judge use ideology
                                 to decide the case, and is
                                         that bad?

-- used syllogistic reasoning that was informed by tradition

1. Alcohol is property                Great Tradition says so

2. The Law protects property           Great Tradition says so

3. It does not matter that beer is
   different from real estate          “Logic” or rhetoric

4. The due process clause does
   not allow for prohibition           The conclusion
Everyone
 Votes!
           1.   Yes, it does      0
           2.   No, it does not   0
Everyone
 Votes!
           1.   Yes, it is      0
           2.   No, it is not   0
on ideology
              0
              0
              0
Tradition and Ideology
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
  -- These cases stress tradition
                   The Ugly Cases


Brandwell (1873)

  Quick summary of facts
  -- Myra Brandwell wants to be
  a lawyer
  -- Her husband is a judge and
  she is the editor of a legal
  periodical that is rather
  successful
  -- She has studied law and has
  passed all of the exams. She is
  just as qualified to be a lawyer
  as any male.
                    The Ugly Cases


Brandwell (1873)
                                      Question:
  Quick summary of facts
                           What is the legal issue in
  -- Myra Brandwell wants to be   the case?
  a lawyer
  -- Her husband is a judge and           Answer:
  she is the editor of a legal
                               It should be Due Process and
  periodical that is rather
  successful
                             Equal Protection*. Remember,
                                the issues in American
  -- She has studied law and has
                              jurisprudence are always
  passed all of the exams. She is
                             framed as a textual matter
  just as qualified to be a lawyer
  as any male.                  *(explain Priv. & Imm. Clause)
                      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
    Appeals The natural
1. defender. to nature a and proper timidity and delicacy which
    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
    the views which belong, or should belong, to the family
   and framework of the
    appeal to is repugnant
   institution sacred naturalto the idea of a woman adopting a
   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
            upon this cardinal principle still exist in full force in
dependent enter contracts,
    cannot
    how can One of
most States. you be athese is, that a married woman is incapable,
without her husband's consent, of making contracts which shall
    lawyer?
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

                 1. Medieval form of natural
                    law
              Ideology




      Question:                  Question:
Did these justices vote    Is it wrong for a justice
    their ideology?       to decide a case based
                                upon ideology?
Everyone
 Votes!
           1.   Yes, it does      0
           2.   No, it does not   0
on ideology
              0
              0
              0
                 Table of Premises


 Set-A                                   Set-B

1. Women are different       1. Legal tradition is against this
   and unfit for many
   occupations (lawyer)      2. It violates the common law
                                (precedent)
2. Nature says that
   women should be in the    3. Women can’t enter contracts,
   home                         so they can’t practice law

3. The Creator says that                Question:
   women should be in the
                             What is the difference between
   home
                              these two sets of premises?
    difference
     between
    premises                                                     0
                                                                 0
                                                                 0
1. Women are different
   and unfit for many
   occupations (lawyer)
                            1. Legal tradition is against this
2. Nature says that
                            2. It violates the common law
   women should be in the
                               (precedent)
   home
                            3. Women can’t enter contracts,
3. The Creator says that
                               so they can’t practice law
   women should be in the
   home
                 Table of Premises


 Set-A                                   Set-B

1. Women are different       1. Legal tradition is against this
   and unfit for many
   occupations (lawyer)      2. It violates the common law
                                (precedent)
2. Nature says that
   women should be in the    3. Women can’t enter contracts,
   home                         so they can’t practice law

3. The Creator says that
                                        Question:
   women should be in the    If premises are unquestionably
   home                       true, is the decision free from
                                          ideology
true premises
= no ideology?
                 0
                 0
                 0
                 Table of Premises


 Set-A                                   Set-B

1. Women are different       1. Legal tradition is against this
   and unfit for many
   occupations (lawyer)      2. It violates the common law
                                (precedent)
2. Nature says that
   women should be in the    3. Women can’t enter contracts,
   home                         so they can’t practice law
                                          Question:
3. The Creator says that
   women should be in the       Is not using ideology simply
   home                           being on the right side of
                                           history?
what does it
mean to say
    that       0
something is   0
ideological?   0
                    The Ugly Cases


Dred Scott

  Quick summary of facts
  -- Slave suing for his freedom.
  -- He says he is free pursuant to state law (Missouri)
  -- But he sues in a federal court.
  -- To be allowed to sue for state-law claims in federal court,
  you need what the law calls “diversity jurisdiction.”
  Each citizen must be from a separate state “The Law”
  -- Scott was from Missouri, the other person New York.
  (so he sues in Federal Court pursuant to this rule)
Quick summary of the decision
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. Therefore, Scott cannot be a citizen of either
Missouri or of America. (Basic idea: Black people don’t
belong here)
No politics involved here:
“It is not the province of the court to decide upon the
justice or injustice, the policy or impolicy, of these laws. ...
The duty of this court is to interpret the instrument they
have framed, with the best lights we can obtain on the
subject, and to administer it as we find it, according to its
true intent and meaning when it was adopted.”
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. Therefore, Scott cannot be a citizen of either
Missouri or of America. (Basic idea: Black people don’t
belong here)
No politics involved here:
                                             Question:
“It is not the province of the court to decide upon the
                                      Is this of right laws.
justice or injustice, the policy or impolicy,the theseway to...
                                            instrument they
The duty of this court is to interpret the interpret the
have framed, with the best lights we can obtain on theis
                                      Constitution? What
subject, and to administer it as we find it, according to its
                                     wrong with approaching
true intent and meaning when it was adopted.” this?
                                        the issue like
right method?
                0
                0
                0
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. Therefore, Scott cannot be a citizen of either
Missouri or of America. (Basic idea: Black people don’t
belong here)
No politics involved here:
        Question:
“It is not the province of the court to decide upon the
    Who injustice,
justice orstands to the policy or impolicy, of these laws. ...
                                           Question:
 benefit when judges
The duty of this court is to interpret the instrument they
have framed, with in best lights Is enforcing tradition
  enforce tradition the             we can obtain on the
                                 politically neutral or is it its
subject, and to administer it as we find it, according to an
    Constitutional
                                           ideology?
true intent and meaning when it was adopted.”
        cases?
right method?
                0
                0
                0
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. Therefore, Scott cannot be a citizen of either
Missouri or of America. (Basic idea: Black people don’t
belong here)
No politics involved here:
                                  Question:
“It is not the province of the court to decide upon the
                  How does tradition hurt the these laws.
justice or injustice, the policy or impolicy, of mission of ...
                      law, notwithstanding instrument they
The duty of this court is to interpret the claims about
have framed, with the best lights we can obtain on the
                 morality and politics? That is, how does
subject, and to administer it as we find it, according to its
                   it do violence to law for its own sake?
true intent and meaning when it was adopted.”
Great Tradition says:
 The Culture is not Stagnant; it is dynamic, organic
At the time of the founding, the legal status of African
Americans was such that they were bought and sold as
property. Therefore, Scott cannot be a citizen of either
       For
            of America. (Basic idea: has to bear
Missouri orLaw to be meaningful, it Black people don’t
              some relationship to society
belong here)
No politics involved here:
                                  Question:
“It is not the province of the court to decide upon the
                  How does tradition hurt the these laws.
justice or injustice, the policy or impolicy, of mission of ...
                      law, notwithstanding instrument they
The duty of this court is to interpret the claims about
have framed, with the best lights we can obtain on the
                 morality and politics? That is, how does
subject, and to administer it as we find it, according to its
                   it do violence to law for its own sake?
true intent and meaning when it was adopted.”
END SESSION

				
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