When one looks at the almost limitless power of judges, and the courts, today, one must wonder at what the thinking of the Founders was.
In truth, it was not the Founders who made the courts what they are today: it was Progressives of the early 20th century.
1. When the Constitution was written, the battle was largely between the folks who wanted a hugely powerful central government, the nationalists, and those who wanted the states to retain the sovereignty and power they had as separate entities, the federalists.
2. In the short-term, the federalists won the day.
For example, the judiciary article of the Constitution did not include giving federal courts the power to hear any cases that Congress wanted them to, as Hamilton and Madison wished, i.e., "those affecting the national peace and harmony."
3. The Constitution did not require that there be any federal trial courts at all. " The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish...." Article III, US Constitution.
4. In further restricting the power of federal courts, the Constitution listed the kinds of cases Congress can authorize said courts to decide:
" The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;to all Cases affecting Ambassadors, other public Ministers and Consuls;to all Cases of admiralty and maritime Jurisdiction;to Controversies to which the United States shall be a Party;to Controversies between two or more States;between a State and Citizens of another State;between Citizens of different States;between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." Article III, section two. Article Three of the United States Constitution - Wikipedia, the free encyclopedia
5. Let's go over that again:
...rather than having federal courts with the power to decide any kinds of cases, the document ratified by the people created a federal judiciary which left most judicial power to the state governments.
a. That would include flag burning, abortion, state government recognition of religion, e.g., public prayer, and homosexual marriage. State courts....not federal.
Gutzman, "The Politically Incorrect Guide to the Constitution," p.26-28.
Federalists who voted to ratify the Constitution were very clear on this issue.
6. It was when Progressives, such as Roscoe Pound and Christopher Columbus Langdell persuaded law schools to stop respecting the actual text of the Constitution, and institute the 'case law' method, that judges were able to impose their whims, caprices and worldviews in place of the Founders.
a. Progressives "Roscoe Pound and others changed the view of the law. Pound firmly believed that the implementation of the principles of the taught legal tradition by wise common-law judges resulted in substantive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that judging facilitated rather than hindered societal growth.
Roscoe Pound legal definition of Roscoe Pound. Roscoe Pound synonyms by the Free Online Law Dictionary.
b. What was evident in his first published book in law, however, was his deep indebtedness to German modes of thinking: law must leave "conceptions" and open itself up to social realities of the modern world. the backwardness of law in meeting social ends,
roscoe pound and jurisprudence and 1903 and nebraska and harvard law school
c. He was perhaps the chief U.S. advocate of sociological jurisprudence, which holds that statutes and court decisions are affected by social conditions; his ideas apparently influenced the New Deal programs of Pres. Franklin D. Roosevelt. Roscoe Pound: Biography from Answers.com
The people of the 1760's and 1770's who advocated a national judiciary of 'all cases whatsoever' were not called Progressives at the time...they were called Tories or monarchists. They lost.
The Patriots favored home rule and the right of states to govern themselves via elected representatives, they won the Revolution. They ratified the Constitution. Gutzman, Op. Cit.
In truth, it was not the Founders who made the courts what they are today: it was Progressives of the early 20th century.
1. When the Constitution was written, the battle was largely between the folks who wanted a hugely powerful central government, the nationalists, and those who wanted the states to retain the sovereignty and power they had as separate entities, the federalists.
2. In the short-term, the federalists won the day.
For example, the judiciary article of the Constitution did not include giving federal courts the power to hear any cases that Congress wanted them to, as Hamilton and Madison wished, i.e., "those affecting the national peace and harmony."
3. The Constitution did not require that there be any federal trial courts at all. " The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish...." Article III, US Constitution.
4. In further restricting the power of federal courts, the Constitution listed the kinds of cases Congress can authorize said courts to decide:
" The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;to all Cases affecting Ambassadors, other public Ministers and Consuls;to all Cases of admiralty and maritime Jurisdiction;to Controversies to which the United States shall be a Party;to Controversies between two or more States;between a State and Citizens of another State;between Citizens of different States;between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." Article III, section two. Article Three of the United States Constitution - Wikipedia, the free encyclopedia
5. Let's go over that again:
...rather than having federal courts with the power to decide any kinds of cases, the document ratified by the people created a federal judiciary which left most judicial power to the state governments.
a. That would include flag burning, abortion, state government recognition of religion, e.g., public prayer, and homosexual marriage. State courts....not federal.
Gutzman, "The Politically Incorrect Guide to the Constitution," p.26-28.
Federalists who voted to ratify the Constitution were very clear on this issue.
6. It was when Progressives, such as Roscoe Pound and Christopher Columbus Langdell persuaded law schools to stop respecting the actual text of the Constitution, and institute the 'case law' method, that judges were able to impose their whims, caprices and worldviews in place of the Founders.
a. Progressives "Roscoe Pound and others changed the view of the law. Pound firmly believed that the implementation of the principles of the taught legal tradition by wise common-law judges resulted in substantive change, which reflected changes in society. As the interpreters of the common law, judges had a special duty to consider the practical effects of their decisions and to strive to ensure that judging facilitated rather than hindered societal growth.
Roscoe Pound legal definition of Roscoe Pound. Roscoe Pound synonyms by the Free Online Law Dictionary.
b. What was evident in his first published book in law, however, was his deep indebtedness to German modes of thinking: law must leave "conceptions" and open itself up to social realities of the modern world. the backwardness of law in meeting social ends,
roscoe pound and jurisprudence and 1903 and nebraska and harvard law school
c. He was perhaps the chief U.S. advocate of sociological jurisprudence, which holds that statutes and court decisions are affected by social conditions; his ideas apparently influenced the New Deal programs of Pres. Franklin D. Roosevelt. Roscoe Pound: Biography from Answers.com
The people of the 1760's and 1770's who advocated a national judiciary of 'all cases whatsoever' were not called Progressives at the time...they were called Tories or monarchists. They lost.
The Patriots favored home rule and the right of states to govern themselves via elected representatives, they won the Revolution. They ratified the Constitution. Gutzman, Op. Cit.
