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Classical Legal Thought II

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Time
                Today’s Lecture:




      Classical Legal Thought


1. Why it developed
2. What it is
3. An example
        Lecture Organization:

        • Class Announcements

        • Review

       • Another Example From John Marshall:
       McCullough v. Maryland

       • Another Example: What is a
       Contract?

       • The “Bad” Examples: Tradition, A
       Priori & Prejudice
Time
                Class Announcements


Next Quiz
-- Next quiz will be posted next Monday
-- Deadline to submit questions is Thursday, in class.
-- This quiz will be more substantial (at least 4 lectures)

Quiz & Exam Questions
-- The quiz questions that you faced will appear on your first
exam, so try to hunt down your mistakes
                Class Announcements


 Reading
-- There is a partial chapter from a book I was once writing that
appears on ANGEL. It is assigned reading in the syllabus. You
may want to pay attention to it. It will help you follow the
lectures that are now being covered

Plan of Study
-- We are a little behind in the syllabus. Don’t worry about it.
               Class Announcements


Next Cases
-- Allow two cases
   • One: Loving v. Virginia
   • Other: Lochner

Plagiarism Warning

-- Remember the sanction for copying briefs from Wikipedia or
Oyez or anywhere else.
                       Class Announcements


       Participation points
       -- please remember to post your comments within 7 days in the
       right drop box.
       Lowest Quality-Point A
       -- 2-points a day for classes where no briefs are due.
       -- 3-points a day for classes where briefs are due.




                                                 Questions?
Time
                      Review


Classical Legal Thought

  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
                     Review


Classical Legal Thought

  Autonomous science

  -- judges find or discover their conclusions; they do not
  make them up
  -- judging has NOTHING to do with POLITICS
                       Review


  Classical Legal Thought

    Tradition/Blackstonian Wing
    -- part of correct judging also involved keeping the sacred
    customs or traditions of the society (left over from an older
    era)
   Genre
                                         Another Period
          One period
cryptic                      Bad Philosophy
                         Syllogisms, if-then logic, either/or
    Platitude,
                         statements, analogical reasoning
    maxim
                       Review


  Marbury v. Madison

1. The Constitution is supreme law;      Starting point

                                               Key premise!
2. It is more important than a mere statute;
                                         Functional Logic
3. Courts are asked to interpret laws;
                                              True by Logic
4. We can’t do this if we ignore the supreme law.
                                   Tremendous Conclusion
5. Therefore, we are the ones who interpret the Constitution.
       Another Example from John Marshall:
             McCullough v. Maryland

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 …
     Another Example from John Marshall:
           McCullough v. Maryland

Facts:

  -- Federal government wants to charter a bank
         (explain the politics behind this)

   Enumerated Powers
   -- Federal government can only do what is specifically
• regulate commerceConstitution; the States have whatever is
   enumerated in the                       Question:
                                         Question:
   left over
• regulate the value of money
                                         Answer:
                                         Question:
                                     What’s the problem,
                                     What is the legal
                                    WhatQuestion:
                                          Several the the
                                           enumerated
• to borrow money, pay debts,        then – why can’t
                                     problem with
                                        power is the
& spend tax money                   What are the facts
                                   federal governmentof
                                    government charter a
                                   government trying to
                                          this case?
• to fund an Army                            bank?
                                    chartering a bank
                                         use here?
     Another Example from John Marshall:
           McCullough v. Maryland

Facts:

  Necessary & Proper Clause
  -- Just because you want to do something that supports or
  carries forth an enumerated power, doesn’t mean that you
  can do it
  -- The thing you want to do has to be “necessary & proper”
  for carrying forth the enumerated power in question
  -- Basic idea: SOME things which carry forth an
  enumerated power simply cannot be done if they are not
  “necessary and proper.”
     Another Example from John Marshall:
           McCullough v. Maryland

Facts:

  Necessary & Proper Clause

  • regulate commerce?            Do it without a bank!
  • regulate the value of
                                  Do it without a bank!
  money?
  • to borrow money, pay debts,
                                  Do it without a bank!
  & spend tax money?
  • to fund an Army?              Do it without a bank!
     Another Example from John Marshall:
           McCullough v. Maryland

Possible Approaches        Old School Natural Law
                         What have governments done
 Great                   in the past when it tried to
 traditions?             regulate commerce?
Nature,                  What does the common law say
Right                    about the propriety of banking,
reason?                  and is this a fundamental right
                         given to allQuestion:
                                      human kind? Is
(This one seems out of   government- run banking
                               What are some of the
place)                       justificatory or laws of
                         consistent with theepistemic
                         nature? that a judge could use
                          things
                          to find an answer to this legal
                                       issue?
      Another Example from John Marshall:
            McCullough v. Maryland

Possible Approaches            “Originalism”
Original                     What would the framers have
intent of the                thought about a central bank?
framers
                             (Icon Theory. The Framers as
Original                     prophets or something)
meaning of the               When the framers wrote the
words the                    words “necessary & proper,”
framers used?                what did that expression mean
          Question:
         Answer:
         Question:
         Question:           to the culture that spoke it?
    Is the Court, and are
     Anthropology,
   How doawe find that
   Is that equipped for
   lawyers, good
 (Archaeology?)idea?– that
     that sort tells us
    out? Whatof thing?
            of thing
      sort this?
       Another Example from John Marshall:
             McCullough v. Maryland

  Possible Approaches              “Consequentialism”

   Social                   Would having a central banking
   Utility                  system make the country better
                            off?
   Efficacious               What if a central banking
                                 Notice a really is not even a
                             system is that this effective way
                                                  Question:
       Question:                 legal question
                                          If this economy?
                             of regulating an is an acceptable
 Again, is this proper to
                                          way better than
                             What if it worksto judge, why are
                                                    Question:
   consider and what         fiscal policy?
                                         lawyers the ones doing
                                              Does this approach
 does it have to do with
                                                cheat? some an
                                        it? Shouldn’t Is this other
lawyers? Do they go to
                                             expertise judge the
                                               acceptable way to
    school for these
                                                   question
                                                     judge?
        answers?
      Another Example from John Marshall:
            McCullough v. Maryland

Possible Approaches

  Defer to the             Don’t allow the bank so long as
  Power                    Jeffersonians and agrarian
  Center                   ideology dominates the other
                           branches of government; only
   “Pragmatism”            allow it when the political winds
                           change

                                            Question: the
                                              or hurt
                              Will this helpQuestion: have-
  Disrupt the
                              nots and powerless? If it helps,
  power
                                      means, bring it the
                                               Why?
                              by all Is this wrong foron. If it
  center                                  judge to do?
                              doesn’t help them, kill it.
“Critical Legal Studies”
      Another Example from John Marshall:
            McCullough v. Maryland

The Actual Opinion:

  Classical Legal Orthodoxy
  -- an indisputable kind of logic that is internal to law’s own
  ideas
  -- in the process, he will demonstrate the science of judging
  before your very eyes
                                            Question:
                                      How is it that Marshall
                                     actually approaches the
                                     problem? How does he
                                         find his answer?
               Hercules and the Syllogism


1. The Argument from Constitution

  A constitution is not a code [very specific in every detail];
  it only has the broad outline of powers
              Hercules and the Syllogism


1. The Argument from Constitution
2. The Implied Powers Argument

Articles of Confederation had a clause excluding “incidental or
implied” powers; this constitution doesn’t have that
                                        “contextual omission”
                Hercules and the Syllogism


1. The Argument from Constitution
2. The Implied Powers Argument
3. Words are not a picture
“Such is the character of human language that no word conveys
to the mind, in all situations, one single definite idea; and nothing
is more common than to use words in a figurative sense.”

                       Wittgensteinian idea in very rough format

                        Words have uses
                Hercules and the Syllogism


1. The Argument from Constitution           Notice the importance
                                            of a rule of reading to
2. The Implied Powers Argument              the rule of law and
3. Words are not a picture                  judging as a science
4. Adopts a Rule of Reading!
“It is--essential to just construction that many words which import
         “excessives” should be marginalized
something excessive, should be understood in a more mitigated
sense – in that sense which common usage justifies. The word
“necessary” is of this description. It has not a fixed character
peculiar to itself. It admits of all degrees of comparison; and is often
connected with other words, which increase or diminish the
impression the mind receives of the urgency it imports. A thing may
be necessary, very necessary, absolutely or indispensably
necessary.”
             Hercules and the Syllogism


1. The Argument from Constitution
2. The Implied Powers Argument
3. Words are not a picture
4. Adopts a Rule of Reading!
   -- “excessives” should be marginalized
   -- evidence supporting the rule

  1st Article, 10th section: “… imposts, or duties on imports,
  except what may be absolutely necessary for executing its
  inspection laws.”
             Hercules and the Syllogism


1. The Argument from Constitution
2. The Implied Powers Argument
3. Words are not a picture
4. Adopts a Rule of Reading!
   -- “excessives” should be marginalized
   -- evidence supporting the rule
   -- Why add the word proper if this wasn’t so?
   -- The Opposite construction doesn’t make sense (e.g.,
   Post Office)
              Hercules and the Syllogism


5. Then he finds the killer evidence
   -- look where they put it!
   -- It is in a power-conferring section of the document, not a
   power limiting section!


                                         Question:
                                   For Gryffindore points,
                                  someone tell me what the
                                     killer evidence is?
            Article II – Powers of Congress

                     Section 8
              • power to Regulate Commerce
              • power to Spend for General Welfare
              • power to Regulate the Armed Forces
              • power to Punish Piracy on the High Seas
              • Coin and Borrow Money
               • Etc., etc,
               • Etc., etc,
              • Necessary and Proper Clause


1/18/2007         (C) Copyright Sean Wilson. 2007.        28
                Article II – Powers of Congress

                          Section 9
              Lists things Congress cannot do:
                    • Suspend Habeas Corpus
                    • Taxes must be Apportioned
                    • No Titles of Nobility
                     • Etc., etc,
                     • Etc., etc,

            Argument from Compositional Structure

            (The organization has a clear purpose)
1/18/2007              (C) Copyright Sean Wilson. 2007.   29
       Another Example from John Marshall:
             McCullough v. Maryland

   The Rule of Law

 Expanding Federal Power
                                   REASONABLE J.M.
To make all Laws which shall be necessary and proper for
carrying into Execution the forgoing Powers, and all other
Powers vested by this Constitution …

“Necessary & Proper” is a term1. no following precedent
of art that means reasonable               Question:
                               2. no tradition.
 Note the significance of this –        What is the Rule of Law
                                        anthropology
                                 3. no announced in the case?
 How should this really be
 “found?”                        4. all by self-contained logic
     Another Example from John Marshall:
           McCullough v. Maryland

Why Marshall is Relevant

  -- Law (judging) is thinking, not looking
  -- inductive puzzles solved within the rhetoric of a deductive
  format
  -- a kind of “Herculean” logic
     Another Example from John Marshall:
           McCullough v. Maryland

Was The Opinion Correct?
     Politics?                    Justification?



                                     Question:
                                  Justification?
                                   Question:
     Politics?                        Question:
                                        Question:
                                         Question:
                                 it wrong for be correct
                              Isthe decision someone to
                           Can If the decision is legally
                             use the decision produced
                            Was ideology when by
                                Was Marshall’s judging?
                               correct,producedopinion
                               and be does it even matter
                             by “politics?” Did Marshall
                                not, what is meant by the
                             Ifcorrect, and what do you
                               that itideology?
                                       also supports a world
                                 vote his “ideology?”?
                                 word when it is versus
                                             that?
                                  mean byview? More
                                       when it isn’t?
                             specifically, what premise is
                                        incorrect?
     Another Example from John Marshall:
           McCullough v. Maryland

Was The Opinion Correct?
     Politics?




                             Justification?
                      The Ugly Cases


1. Dred Scott
2. Brandwell (1873)
3. Muller v. Oregon:(1908)
4. Lochner (1905)
                      The Ugly Cases


1. Dred Scott
2. Brandwell (1873)
3. Muller v. Oregon:(1908)
4. Lochner (1905)
                         Dred Scott


1. Overview of the facts.
2. Holding:
   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: “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.”
   [idea: the law of culture is stagnant]
                        Dred Scott


1. Overview of the facts.
2. Holding:
   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: “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.”
                        Dred Scott


1. Overview of the facts.
2. Holding:
   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: “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.”
                        Dred Scott


1. Overview of the facts.
2. Holding:
   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: “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.”
                      The Law of Culture is Stagnant
                      The Ugly Cases


1. Dred Scott
2. Brandwell (1873)
3. Muller v. Oregon:(1908)
4. Lochner (1905)
                       Brandwell



1. facts of the case


2. The opinions of Justices Field, Bradley, and
Swayne
                       Brandwell



1. facts of the case


2. 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.
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.


                     The logic of sexism
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.
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.


                   Rationalizing Castigation
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.
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 Natural Law;
                The Ugly side of Classicism
                             No Politics???


“Our province is to decide what the law is, not to declare what it should
be. ... We have given this case the careful consideration its importance
demands. If the law is wrong, it ought to be changed; but the power for
that is not with us ... no argument as to woman’s needs of suffrage can
be considered. We can only act upon her rights as they exist. It is not
for us to look at the hardship of withholding. Our duty is at an end if we
find it is within the power of the state to withhold.”
                      The Ugly Cases


1. Dred Scott
2. Brandwell (1873)
3. Muller v. Oregon:(1908)
4. Lochner (1905)
                 Muller v. Oregon



1. facts of the case -- women working overtime


2. The majority opinion
                       Muller v. Oregon


1. facts of the case -- women working overtime


2. The majority opinion


“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.”
                   What is a contract?
1. Answer is analytical; “logical”
2. … that which is necessarily entailed in the operative
concept; that is, in the “essence of a contract.”
3. Hence, contracts are:
Properties of a contract:
         A MUTUAL EXCHANGE OF DETRIMENT
                       What is a contract?
1. The properties of a contract are:

                                 OFFER
                            ACCEPTANCE
                          CONSIDERATION


 How is this different from Blackstone and the Elders?
        a. Format? (Logic over maxim?)
        “He who hath secured his expectation shall have his due”
        b. Tradition and metaphysics have a partner?
        If it is not traditional that a contract would exist, does that
        mean it will if logic says it does?
Problem?


     1. Gay marriage?
     2. Prom Dates?
     3. Giving the bride away?
     4. Christmas presents?

				
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