Why Lawyers Don’t Understand Law Part I

Discussion in 'Law and Justice System' started by PoliticalChic, Dec 21, 2012.

  1. PoliticalChic
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    PoliticalChic Gold Member

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    1. “Chief Justice John Marshall offered [this] in Marbury v. Madison, the case often credited with establishing judicial review. Marshall wrote that we have a written Constitution so that the limits on government power “may not be mistaken, or forgotten” and that the Constitution is “a rule for the government of courts, as well as of the legislature.” Judges are part of the government…Marshall wrote that the Constitution represents “the intention of the people.” Intention is expressed through the meaning, not merely the form, of words. …The Constitution could not continue to be the intention of the people if its meaning could be changed by anyone but the people. Quoting George Washington, the Rhode Island Constitution declares that “the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”
    What Is the Constitution? - By Orrin Hatch - The Corner - National Review Online





    2. So….how to understand what was meant when the Constitution was written? As a basis for understanding the Commerce Clause, Professor Randy Barnett examined over 1500 times the word ‘commerce’ appeared in the Philadelphia Gazette between 1715 and 1800. In none of these was the term used to apply more broadly than the meaning in which the word ‘commerce’ refers to the trade and exchange of goods, and that process, including transportation of same. A common trilogy was ‘agriculture, manufacturing and commerce.’

    a. For an originalist, direct evidence of the actual use of a word is the most important source of the word’s meaning. It is more important than referring to the ‘broader context,’ or the ‘larger context,’ or the ‘underlying principles,’ which is the means by which some jurists are able to turn ‘black’ into ‘white’, and ‘up’ into ‘down.’





    3. Everything changed when Progressives took over law schools. They taught law students a) that there was no natural law, nor unalienable rights, and b) that the Constitution is altered by case law. This meant American lawyers interpreting the Constitution via caselaw rather than through studying the Constitution itself.

    a. Roscoe Pound (1870-1964), Dean of Harvard Law School, instituted the "taught legal tradition." 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 - definition of Roscoe Pound by the Free Online Dictionary, Thesaurus and Encyclopedia.
    What was evident in his first published book in law, common with Progressives, was his deep indebtedness to German modes of thinking.

    b. Pound sought to adjust principles and doctrines of law to the realities of the human condition…. wanted to extract wisdom from German social science to apply to American law.: 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





    Again....the premise is that judges are wiser than the Founders.....

    ...and that their decisions for social justice surpass the guidance of the Constitution. All current lawyers have been taught this.
    Some rise above it.


    At the Senate hearings for Judge Robert's Supreme Court nomination, Senator Schumer asked Roberts if the 'little guy' would get special consideration in the court.

    "If the Constitution says that the little guy should win, then the little guy's going to win in the court before me," Roberts told senators. "But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution."
    Read more: Roberts Sworn In as Chief Justice | Fox News


    Of course, that is not the view of Progressives.
    Most lawyers are Progressives.
     
  2. konradv
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    konradv Gold Member

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    i.e. Obamacare is constitutional.
     
  3. PoliticalChic
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    PoliticalChic Gold Member

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    ....sadly so.

    BTW....I predicted that it would be found so.
     
  4. Mad Scientist
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    Mad Scientist Clipboard Guy! Gold Supporting Member Supporting Member

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    As PC has pointed out, replacing Blacks Law with Case Law was the big turning point in allowing our Laws to be changed, perverted, eliminated or just plain ignored.
     
  5. PoliticalChic
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    PoliticalChic Gold Member

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    "...changed, perverted, eliminated or just plain ignored."


    All hail the late, great, United States of America.
     
  6. jillian
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    jillian Princess Supporting Member

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    didn't you already do this thread (or a reasonable facsimile) PC?

    funny, though, i guess doctors don't understand medicine either... they should be laying on hands, right?
     
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    Last edited: Dec 22, 2012
  7. PoliticalChic
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    PoliticalChic Gold Member

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    Am I stepping on your toes,here?

    Am I hearing you say 'ouch'?


    Simple challenge: does the Constitution spell out exactly the manner...the only manner....by which it can be changed?

    Is the 'case law method' not a back-door method to change the Constitution, by allowing judges to insert their own proclivities in place of the enshrined document?


    Are we ready to discuss Lochnerization?
     
  8. midcan5
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    midcan5 liberal / progressive

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    If that were true one would have to consider why. Did these progressives magically appear with progressive ideas? What are those ideas? And how is it they taught these students there was no natural law etc? Were the students blank slates in which these ideas could be implanted?

    Could it just be that reality changed and thus ideas changed? Life as a farmer is much different than life as a citizen of a metropolitan city made up of diverse business and complex interests. I have to find the thread where 'natural law' was debated. Personally NL is a myth used by some ironically to demonstrate their own view of law which then renders natural law un-natural. ;)

    'Debating the Constitution'

    http://ocw.mit.edu/courses/politica...ught-spring-2004/lecture-notes/lecture4_1.pdf And check out. "The Modern Mind: An Intellectual History of the 20Th Century' Peter Watson - ideas see his other work too.
    _
     
    Last edited: Dec 23, 2012
  9. jillian
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    no dear... no 'stepping on toes'.

    why do rightwingers do that? if it's pointed out that you are being ridiculous, it's immediately... oh... did we hit a nerve, or step on toes.

    no... neither... the answer is... you sound ridiculous.

    i'm only pointing it out. as have others, i believe.

    and if you are posting this nonsense and don't get a response from people who disagree with you, or try to discourage people who disagree with you by whining about 'stepping on toes'... well, i'd suggest that's not going to happen.

    you can't just post ridiculous nonsense... well, you can, but we're going to continue to laugh at you.

    now ... again... why on earth would you think anyone who got their 'legal education' from the rightwingnut blogosphere knows more about "the law" than people who've actually been trained.

    i know... education has no value among the right wing.

    it's sad.
     
  10. PoliticalChic
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    PoliticalChic Gold Member

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    Since support for my position comes from Chief Justice John Marshall, Chief Justice John Roberts, Chief Justice William Rehnquist, and others I'd be happy to name....

    ...it certainly cannot be "pointed out that you are being ridiculous,..."


    Or can you point out the note in the Constitution that allows for changes outside of the amendment process?

    No?


    See what I mean.

    The case law system is a fabrication by those who want the outcome to reflect their elitist position, rather than the Constitution.



    I never post anything that I cannot support.
    I would hope that you can do the same, rather than the default position of the Left, cast aspersions.


    Does it appear to you that I know less than your do in this connection? Prove it.
     

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