Why Lawyers Don’t Understand Law Part I

[PoliticalChic]

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.

 

[konradv]

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."

i.e. Obamacare is constitutional.

 

[PoliticalChic]

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."

i.e. Obamacare is constitutional.

....sadly so.

BTW....I predicted that it would be found so.

 

[Mad Scientist]

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.

 

[PoliticalChic]

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.

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


All hail the late, great, United States of America.

 

[jillian]

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."

i.e. Obamacare is constitutional.

....sadly so.

BTW....I predicted that it would be found so.

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?

 

[PoliticalChic]

i.e. Obamacare is constitutional.

....sadly so.

BTW....I predicted that it would be found so.

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?

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?

 

[midcan5]

....

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

....

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.
_

 

[jillian]

....sadly so.

BTW....I predicted that it would be found so.

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?

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?

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.

 

[PoliticalChic]

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?

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?

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.

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.

 

[PoliticalChic]

....

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

....

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.
_

Education, comin' right up!


1. The modern liberal’s excesses include a) the removal of natural rights, b) the attempt to change human nature, c) denial of the efficacy of the free market with the substitute view that good-natured bureaucrats will know how to assign economic value. Further….that there is no limitation to the power of government.




2. For over a century the natural rights concept of the Founders, and of Abraham Lincoln, had served as the philosophical foundation for America. But, during the late 19th -early 20th centuries, what we know as ‘progressives’ repudiated the idea. A leading progressive, John Dewey: “Natural rights and natural liberties exist only in the kingdom of mythology and social zoology.” Dewey, “Liberalism and Social Action,” p. 17.

a. Charles Merriam: “The individualistic ideas of the ‘natural rights’ school of political theory, endorsed in the Revolution, are discredited and repudiated.” Merriam, “A History of American Political Theories,” p.307.

3. Let’s be clear: the central doctrine of progressives is that government can withdraw any ‘right’ at any time, as opposed to the view that there are permanent rights founded in “nature and nature’s God.” Perhaps you recall it this way: that humans are “endowed by their Creator” with “unalienable rights.”

a. "Unalienable: incapable of being alienated, that is, sold and transferred." Black's Law Dictionary, Sixth Edition, page 1523: You can not surrender, sell or transfer unalienable rights, they are a gift from the creator to the individual and can not under any circumstances be surrendered or taken. All individual's have unalienable rights.




4. Progressives believed that rights are relative (Dewey spoke of ‘historical relativity’) and that not just society changes, but human nature itself does; i.e., it is malleable. Compare this to the view of the Founders. The Constitution commemorates our revolution, and, as Madison states in the ‘Federalist,’ is the greatest of all reflections on human nature…human beings are not angels.”

a. Humans are not perfectible, but are capable of self government. The republican form of government presupposes this idea of humans. Our government is not a controlling government, but must itself be controlled: by the Constitution.

b. Where else do we see the progressives view? “Communist Revolution is based on the idea of transforming human nature. “The New Soviet man or New Soviet person (Russian: новый советский челове&#1082, as postulated by the ideologists of the Communist Party of the Soviet Union, was an archetype of a person with certain qualities that were said to be emerging as dominant among all citizens of the Soviet Union, irrespective of the country's long-standing cultural, ethnic, and linguistic diversity, creating a single Soviet people, Soviet nation.[1] New Soviet man - Wikipedia, the free encyclopedia

c. The view is consistent today: In 1969, Hillary Rodham gave the student commencement address at Wellesley in which she said that “ for too long our leaders have used politics as the art of making what appears to be impossible, possible….We’re not interested in social reconstruction; it’s human reconstruction.” http://www.wellesley.edu/PublicAffairs/Commencement/1969/053169hillary.html_____





So....you believe that we have no rights that the government cannot take away?

....you believe that the power of government is unlimited?

....you believe that that human nature can be changed?


Really?

 

[jillian]

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?

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.

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.

yes it does, actually. it looks like you know very little.

the caselaw system is what we brought with us from england... it's called a "common law" system. that is what we have.

we do not live in a code nation where only the 'statute' controls. that would be a country like france. there is, in fact, one state in this country, louisiana, which took it's system from france, which is a code state.

so yes... it seems to me you know very little... about our history, about our law and about the concepts of stare decisis and precedent.

the money i spent on school wasn't wasted. and a bunch of yutzes on the internet, no matter what your chosen blog, do not know more about law than lawyers.

that does not mean i am a constitutional "expert". and my area of practice was not, and is not, 'constitutional' law... though peripherally, those issues come up in many areas of practice.

but if you don't understand the basics of our common law system, you don't have any understanding of constitutional analysis

 

[AquaAthena]

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."

i.e. Obamacare is constitutional.

As a tax.

And just wait `till the middle class reacts to the reality of it.....

 

[PoliticalChic]

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.

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.

yes it does, actually. it looks like you know very little.

the caselaw system is what we brought with us from england... it's called a "common law" system. that is what we have.

we do not live in a code nation where only the 'statute' controls. that would be a country like france. there is, in fact, one state in this country, louisiana, which took it's system from france, which is a code state.

so yes... it seems to me you know very little... about our history, about our law and about the concepts of stare decisis and precedent.

the money i spent on school wasn't wasted. and a bunch of yutzes on the internet, no matter what your chosen blog, do not know more about law than lawyers.

that does not mean i am a constitutional "expert". but it sure means you aren't.

The only way constitutionality is to be judged is via the language of the Constitution.

"...does not mean i am a constitutional "expert". but it sure means you aren't"

How about this guy, named Rehnquist. He says exactly what I said:

"Once we have abandoned the idea that the authority
of the courts to declare laws unconstitutional is somehow tied
to the language of the Constitution that the people adopted, a
judiciary exercising the power of judicial review appears in a
quite different light.

Judges then are no longer the keepers of
the covenant; instead they are a small group of fortunately
situated people with a roving commission to second-guess
Congress, state legislatures, and state and federal administrative
officers concerning what is best for the country."
http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf



So....you're more of an expert on the Constitution and jurisprudence than William Rehnquist?



See what I said about being able to support my position?
Can you, yours?

 

[PoliticalChic]

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."

i.e. Obamacare is constitutional.

As a tax.

And just wait `till the middle class reacts to the reality of it.....

I sure wish I had the faith in the electorate that you do, Athena....


I've been reading the following phrase describing the electorate...."Low Information Voters.'
Seems right to me.

 

[Valerie]

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.

yes it does, actually. it looks like you know very little.

the caselaw system is what we brought with us from england... it's called a "common law" system. that is what we have.

we do not live in a code nation where only the 'statute' controls. that would be a country like france. there is, in fact, one state in this country, louisiana, which took it's system from france, which is a code state.

so yes... it seems to me you know very little... about our history, about our law and about the concepts of stare decisis and precedent.

the money i spent on school wasn't wasted. and a bunch of yutzes on the internet, no matter what your chosen blog, do not know more about law than lawyers.

that does not mean i am a constitutional "expert". but it sure means you aren't.

The only way constitutionality is to be judged is via the language of the Constitution.

"...does not mean i am a constitutional "expert". but it sure means you aren't"

How about this guy, named Rehnquist. He says exactly what I said:

"Once we have abandoned the idea that the authority
of the courts to declare laws unconstitutional is somehow tied
to the language of the Constitution that the people adopted, a
judiciary exercising the power of judicial review appears in a
quite different light.

Judges then are no longer the keepers of
the covenant; instead they are a small group of fortunately
situated people with a roving commission to second-guess
Congress, state legislatures, and state and federal administrative
officers concerning what is best for the country."
http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf



So....you're more of an expert on the Constitution and jurisprudence than William Rehnquist?



See what I said about being able to support my position?
Can you, yours?

More like you said exactly what he said... woopty doo

 

[PoliticalChic]

yes it does, actually. it looks like you know very little.

the caselaw system is what we brought with us from england... it's called a "common law" system. that is what we have.

we do not live in a code nation where only the 'statute' controls. that would be a country like france. there is, in fact, one state in this country, louisiana, which took it's system from france, which is a code state.

so yes... it seems to me you know very little... about our history, about our law and about the concepts of stare decisis and precedent.

the money i spent on school wasn't wasted. and a bunch of yutzes on the internet, no matter what your chosen blog, do not know more about law than lawyers.

that does not mean i am a constitutional "expert". but it sure means you aren't.

The only way constitutionality is to be judged is via the language of the Constitution.

"...does not mean i am a constitutional "expert". but it sure means you aren't"

How about this guy, named Rehnquist. He says exactly what I said:

"Once we have abandoned the idea that the authority
of the courts to declare laws unconstitutional is somehow tied
to the language of the Constitution that the people adopted, a
judiciary exercising the power of judicial review appears in a
quite different light.

Judges then are no longer the keepers of
the covenant; instead they are a small group of fortunately
situated people with a roving commission to second-guess
Congress, state legislatures, and state and federal administrative
officers concerning what is best for the country."
http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No2_Rehnquist.pdf



So....you're more of an expert on the Constitution and jurisprudence than William Rehnquist?



See what I said about being able to support my position?
Can you, yours?

More like you said exactly what he said... woopty doo

Correct.
I learned from him.


But it certainly isn't what Jillian said, nor support for the case law system of Pound and Langdell, is it.

 

[PoliticalChic]

Actually, I had expected better prepared and insightful responses for lawyer-folk when I aimed to refute the very basis of their profession…

But, I suppose the day-to-day mechanics of the profession pries one away from an examination of the philosophy of its foundations.

I don’t have that responsibility….so I might have been wrong in expecting the discussion to move with my interests.



But…if no one minds….let me give what might be a defense of the other side:

1. While I despise the concept of a “living” Constitution, Justice Wm. Brennan, jr…in a 1985 Georgetown speech supported the “transformative purpose” of the Constitution, in which he argued for an “aspiration to social justice, brotherhood, and human dignity…”

2. Brennan attacked the originalist view “little more than arrogance cloaked in humility” because we cannot discern how the Framers would apply moral-philosophic natural law to modern problems. Brennan denies any “static meaning,” but looks, instead, for ‘adaptability.”

a. Brennan falls back on the idea that moderns should not be bound by “a world that is dead and gone.”
Brennan identifies the Bill of Rights as protecting human dignity, they asks whether the death penalty, for example, is compatible with human dignity.


3. Anyway, that is the line of defense I thought might be used to defend case law over originalism.

 

[ZhaneCanalpan6]

Because 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?

 

[jillian]

Because 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?

no... because case law is the basis for our legal system.