4. There is no doubt that the Progressives shredded the Constitution as the primary basis of law, advocating for sociological jurisprudence: 'laws purpose is to achieve social aims. Legal rules, including constitutional rights, cannot be deduced from first principles. Judges should therefore consider the public interest and social facts when interpreting the Constitution.'
5. Even before Roscoe Pound, Christopher Columbus Langdell , 1826-1906, reduced the importance of the Constitution in the law profession. In 1875 he became dean of Harvard law school. Together with J. B. Ames , who succeeded him as dean in 1895, he revised the curriculum of the school. Langdell is especially famed for the introduction of the "case method" in the study of law.
a. Langdell's theory was first adopted at Harvard, then at Columbia law school, and in time gained almost universal acceptance. Langdell prepared casebooks in the fields of contracts, equity, and sales. http://www.encyclopedia.com/topic/Christopher_Columbus_Langdell.aspx
b. Before Langdell's tenure the study of law was a technical pursuit. Students were told what the law is. However, at Harvard Langdell applied the principles of pragmatism to the study of law. Now, as a result of this innovation, lawyers are taught the law through a dialectical process of inference called the case method. The case method has been the primary method of pedagogy at American law schools ever since. Students such as Oliver Wendell Holmes, Jr. would ensure that Langdell's innovation would not go unnoticed. Christopher Columbus Langdell - Wikipedia, the free encyclopedia
c. It is based on the principle that rather than studying highly abstract summaries of legal rules (the technique still used in most countries), the best way to learn American law is to read the actual judicial opinions which become the law under the rule of stare decisis (due to its Anglo-American common law origin). Not the Constitution...which was eaten away in increments.
6. The result is that lawyers today respect and honor the view of judges opinions, precedent, over the nominal law of the land, the Constitution.
7. There is the question of the proper function of the courts, and the overreach that some recognize in cases such as Lochner v. NY, and characterized as Lochnerizing
a. Lochnerization is a method to examine and strike down economic legislation under the guise of enforcing the Due Process Clause. Lochnerization was first used by the U.S. Supreme Court in the early 20th century, and is derived from the decision in Lochner v. New York, 198 U.S. 45 (U.S. 1905). Lochnerization also describes a method of legal reasoning where a court substitutes its policy judgment for a legislature in overturning legislation.
Lochnerization Law & Legal Definition
b. This case is often cited as an example of judicial activism in opposition to textualism, that is finding rights in the Constitution that are not in its wording.
c. Justice Oliver Wendell Holmes claimed that the court had imposed its own social view, and when there are good reasons on both sides of an issue, the courts should defer to the legislature. He pointed to the textual problem, in that the phrase right of contract did not appear in the Constitution.
8. The longest serving Chief Justice, Wm. Rehnquist, explained the fallacy thusly:
The brief writers version
seems instead to be based upon the proposition that federal
judges, perhaps judges as a whole, have a role of their own,
quite independent of popular will, to play in solving societys
problems.
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.
a. 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
5. Even before Roscoe Pound, Christopher Columbus Langdell , 1826-1906, reduced the importance of the Constitution in the law profession. In 1875 he became dean of Harvard law school. Together with J. B. Ames , who succeeded him as dean in 1895, he revised the curriculum of the school. Langdell is especially famed for the introduction of the "case method" in the study of law.
a. Langdell's theory was first adopted at Harvard, then at Columbia law school, and in time gained almost universal acceptance. Langdell prepared casebooks in the fields of contracts, equity, and sales. http://www.encyclopedia.com/topic/Christopher_Columbus_Langdell.aspx
b. Before Langdell's tenure the study of law was a technical pursuit. Students were told what the law is. However, at Harvard Langdell applied the principles of pragmatism to the study of law. Now, as a result of this innovation, lawyers are taught the law through a dialectical process of inference called the case method. The case method has been the primary method of pedagogy at American law schools ever since. Students such as Oliver Wendell Holmes, Jr. would ensure that Langdell's innovation would not go unnoticed. Christopher Columbus Langdell - Wikipedia, the free encyclopedia
c. It is based on the principle that rather than studying highly abstract summaries of legal rules (the technique still used in most countries), the best way to learn American law is to read the actual judicial opinions which become the law under the rule of stare decisis (due to its Anglo-American common law origin). Not the Constitution...which was eaten away in increments.
6. The result is that lawyers today respect and honor the view of judges opinions, precedent, over the nominal law of the land, the Constitution.
7. There is the question of the proper function of the courts, and the overreach that some recognize in cases such as Lochner v. NY, and characterized as Lochnerizing
a. Lochnerization is a method to examine and strike down economic legislation under the guise of enforcing the Due Process Clause. Lochnerization was first used by the U.S. Supreme Court in the early 20th century, and is derived from the decision in Lochner v. New York, 198 U.S. 45 (U.S. 1905). Lochnerization also describes a method of legal reasoning where a court substitutes its policy judgment for a legislature in overturning legislation.
Lochnerization Law & Legal Definition
b. This case is often cited as an example of judicial activism in opposition to textualism, that is finding rights in the Constitution that are not in its wording.
c. Justice Oliver Wendell Holmes claimed that the court had imposed its own social view, and when there are good reasons on both sides of an issue, the courts should defer to the legislature. He pointed to the textual problem, in that the phrase right of contract did not appear in the Constitution.
8. The longest serving Chief Justice, Wm. Rehnquist, explained the fallacy thusly:
The brief writers version
seems instead to be based upon the proposition that federal
judges, perhaps judges as a whole, have a role of their own,
quite independent of popular will, to play in solving societys
problems.
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.
a. 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
