Saturday, 30 May 2009

• When the rule of law is no longer a rule

  Founders Intent-Part 2

  In Part One.,  I presented the initial concept of fixed or anchored law through the Marbury vs. Madison decision. Before we go forward, I believe it is noteworthy that we look to the Court herself in their first major decision of Consitutional law to see their view of the Constitution and the rule of law.

  "The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

  If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. "

   I believe it is fairly clear that until the civil war that Blackstone's Commentaries on the Law was the  "bible of American lawyers,"

  Cultural Changes impacting the law

  America itself was changing as she was coming into her own. For theists, their faith became more pietistic and inward focused, as opposed to the cultural mandate view of life that their forefathers held to . The pietists over time switched their focus from being salt for the world to inner faith and a personal relationship, with the result being that their cultural influence diminished in the public square. The American Universities, many founded as seminaries and having pastoral deans were changing focus as well as their presuppositions.

  Of course, our civil war and it's aftermath had a great impact on society can not be understated, and was reflected thereafter in our legal theory and how we viewed  both the law and the Court itself.

  On November 24, 1859,  The Origin of Species by Means of Natural Selection or the Preservation of Favoured Races in the Struggle for Life was published. The impact this would eventually have on our legal system was immense.

  Changing Presuppositions

  The Declaration of Independence showed the presuppositions of the Western World at its inception. Whether someone was actually a Christian or religious is not is what is of import for this review, but the appeal is made to the document itself. In the opening paragraph of the Declaration it states, "the separate and equal station to which the Laws of Nature and of Nature's God entitle them".

  The opening of the second paragraph removes all doubt. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness"

  The acknowledgement and the presupposition at the time was that we were a) created; b) their was a superior Creator: and  c) that the Creator granted them rightsThis was the core theme and the justification used for the colonies to separate from the King. The Declaration makes no sense without that underlying presupposition.

  Darwin and subsequently Darwinism, rejected the founders presuppositions and the idea of a Creator, A Creator God, Divine Order or that their would be rights granted from a Creator. Herbert Spencer then proffered that as nature itself evolves the best is yet to come in the future, so we can not really discern right principles of conduct from a fixed standard as the world is today, but must change with that evolution.

  Christians at this period had in many ways abandoned culture and also academia, and Social Darwinism took hold like wildfire in the vacuum. It was Herbert Spencer and his "Social Darwinism" that had the greatest impact on our educational and legal system. Spencer was a rival of Charles Darwin's. " In Spencer's view, evolution is actually a progressive movement towards an "equilibrium" where individual beings change their characteristics and habits until they are perfectly adapted to circumstances and no more change is called for. Thus, Spencer's evolutionary mechanism is not only ultimately cumulant (i.e. it ends), but he also draped it in utilitarian teleological glitter, i.e. the idea that it is "progressive". (link)

  The Law Evolves

  Shifts in disciplines normally are preceded in shifts in the educational system. The shift in the law began in the 1870's  when Christopher Langdell,  dean of Harvard Law School, began to apply a Social Darwinist approach to teaching the law.

  "In 1869, Harvard's new president, Charles W. Eliot, an accomplished chemist committed to educational reform, recruited Langdell to be Dane Professor of Law at the law school. It was hoped that Langdell could help revitalize the school, which had been criticized by the legal community as stagnant.

  "Mr. Fox, will you state the facts in the case of Payne v. Cave?" That simple question marked the beginning of a revolution in LEGAL EDUCATION. In 1870, Professor Christopher Columbus Langdell, in the first contracts class he taught at Harvard Law School, put the question to a student and forever changed the way lawyers learned their craft. No longer would law students sit passively and take notes while their professor lectured or read out of a legal treatise. Langdell's students read the reports of actual court cases and were required to discuss them in class. Langdell is credited with introducing the case-study method of instruction into U.S. law schools.( link )

  John Whitehead opines that Langdell's true impact on legal education (therefore, the law itself)  was his belief that the principles and doctrines of the law evolved over many years. Again, many times timing is everything.  In the nations beginning law was taught from established principles and doctrines as it had none which was uniquely it's own.  But what was important was that Langdell  believed the law was evolving as the judges issued their legal opinions. So in effect, what a judge said was law and not the Constitution.

  This was in direct contrast to the prevailing opinion of the day that the principles and doctrine of law were unchanging and absolutes. The student then learned how to apply the principles and doctrines to practice. Langdell taught in contrast that principles and doctrines of the law were being developed in the appellate courts by judges. Prevailing legal theory until then was judges opinions were not sources of law but rather "evidence" of law. It is interesting that in most cases Blackstone Commentaries is no longer studied in law schools as constitutional law.    most likely stemming "from the presuppositional  differences with today's more relativistic, evolutionary approach in contemporary legal education."

  Name something good that has come out of the living breathing constitutional approach

  Yes, that is the question that started this post. Paige, my answer to good is going to be objectively subjective.

  Answer: Case Law applied in civil law allows for a standard to be set to which either the plaintiff or defendant can appeal to. So if a judge rules on a case that deviates from the standard interpretation in the law, a party can appeal the judgment based on it's deviance from  previous decisions.

  So while many times case law is viewed as the "red headed step child that needs to be beaten", I do not agree. If case law is applied in a "Blackstonian " methodology it allows one to appeal to equity and fairness. In fact, it could be argued that it would strengthen the rule of law, by basing all decisions on previous decisions, with the only chance of prevailing  in a case that did not follow that standard would be if one could show the fundamental legal flaw in the original decision that is now the prevailing case law.

  A second good thing would be our attempt for equity in our criminal courts today with the Pre Sentence Investigations. Basically it is a score sheet considering several factors and tries to produce a equity guideline on the term someone should be sentenced to based on factors. This was meant to counter "hanging judges" or a "slap on the wrist" judges to justify their reasons for deviating from a standard set from sentencing guidelines when issuing their opinion. It tries to use a objective standard, yet allows for subjectivity.

  Good intentions uproot original intent

   We must stop and remind ourselves before we go further that much of this change occurred because Harvard Law was considered stagnant and needed new life and energy. I guess when we used anchored law and fixed principles, anchored law could lack drama and excitement. In many ways it was like saying truth and objectivity needs some spice and change to be attractive. So in effect, a drive to revitalize a law school ended up changing American Law and undermined the founders intent, even as expressed in their original decisions and the founders writings in support of a federal judiciary.

  In concluding part two, I want to address what many may find strange in me calling good things-case law and pres-sentence investigations. In fact, many would call these the exact opposite, things that have been corrupted. I would argue differently.

  Both of these methodologies are subjected to the presuppositions which undergird their application. With a fixed basis of law, the law is what the law says it is. Fairness, Equity and Justice are sought by appealing to a standard, something in which you can compare it to. If the fixed standard is against the backdrop the founders used as their presupposition, Blackstone's Commentaries, application of the law can become very standardized because of ones right to appeal to like case and decisons.

  The problem is when the evolution of the law eliminates fixed standards and the law becomes a moving target rather than a rule. If I was to compare law to mathematics, I can appeal to a mathematical rule as a standard by which problems are solved. How many times in school is one told, the answer alone is not good enough, prove your answer. And one proves it by applying formulations to the problem and arriving at a answer using the rules applied in mathematics. How would science or computing change if the rule of mathematics changed with time and culture? They would not be rules but temporary theories and could not be relied upon as a standard.

  And that is what has happened to our legal system. The appeal to the rule of law today can not be relied upon because it is no longer a fixed standard or rule which can be proven but rather a moving target.

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