January 13, 2010

Judiciary

Without Grounding, There Is Only Personal Preference

Justin Katz

Another founding father of modern progressivism described in the series of National Review essays that I mentioned yesterday is Oliver Wendell Holmes, whose repercussions in modern jurisprudence Bradley Watson describes thus:

There is a residual incoherence to the progressive jurisprudence that has followed Holmes. It alternates between two poles. On one hand, it expresses the desire to make decisions that are legitimate in the eyes of the community--decisions that respond to something like, in Holmes's words, the "felt necessities" of the age. On the other, it encourages decisions that oppose what it claims is illegitimate majority will. But neither pole is rooted in constitutional text, tradition, logic, or structure. Rather, they are both rooted in the judge's view of which necessities are most deeply felt and most likely to encourage social and personal growth. The practical result, in contemporary jurisprudence, is that art trumps economics, expression trumps the common good, subjectivity trumps morality, freedom trumps natural law, and will trumps deliberation. Such is the face of progressive jurisprudence, a face that now seems tremendously weather-beaten from its triumphal march of a hundred years' duration.

In sum, the preferences of an elite statist class, as inculcated in a given judge, trump everything. It's outcome first, reasoning post hoc, and there's no way to oppose it in common terms among countrymen, because the arguments aren't, as Watson says, rooted in anything. That is to say that the argument itself is a mere performance in support of a peremptory opinion.

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Justin,

Your understanding of the law is nearly as amusing as Monique's understanding of climate science.

According to nearly everyone who isn't a professor at St. Vincent College, Holmes was the enemy of imposing political or philosophical ideology into the law.

In Lochner v. New York, Holmes called out the majority for striking down a NY law that regulated the hours that bakers could work. The majority struck it down because they created ("out of thin air" as a modern conservative would say when criticizing liberal judges today) a right to "liberty of contract" in the due process clause of the 14th Amendment (see if you can find "liberty of contract" in the 14th amendment). As even the most conservative legal scholar would admit today, the court at that time regularly indulged its laissez-faire economic preferences by striking down laws passed by legislatures.

Holmes called the conservatives on their constitutional creativity and ideological judging. It is one of the most discredited periods of American legal history. And Holmes' reputation as a giant in Western legal thought is largely attributable to his fight against imposing ideology into the law.

But then again, why would I expect AR to present anything but the most cartoonish view of an issue? After all, those elites and intellectuals aren't to be trusted.

Posted by: Pragmatist at January 13, 2010 9:16 PM

Two points:

1. You're arguing against a related, but not precise, point than the one I made. This post looks at progressive jurisprudence following Holmes. The world is not bereft of examples in which a theorist's repercussions were quite distinct from his intended ends.
2. Be that as it may, the article that I cited layers some debate and nuance upon your view. I'll not take sides, prematurely, but you might try addressing its claims before cranking out another useless jab at us.

Posted by: Justin Katz at January 13, 2010 9:31 PM

I have wondered whether Justice Holmes' experience in the Civil War did not effect his judgment of the relations between men and government. He doubtlessly witnessed much, he served in both the "Peninsula Campaign" and the "Wilderness". While the "Peninsula" was largely a ineffective battle of maneuver, the "Wilderness" was carnage for the Union troops.

He was wounded several times although I don't recall the severity of those wounds. Still, it must "set a man to thinking".

Posted by: Warrington Faust at January 14, 2010 12:27 PM
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