The Los Angeles Times building was destroyed after labor unionists bombed it. The attack killed 21 people on October 1, 1910. Dismantling the Administrative State
Gino Santa Mario/Adobe Stock ImagesAdvisory Opinions Will Save Everyone’s Time — and Keep Constitutionalism in Mind
Evakhov Valeriy/Shutterstock.comDebating Advisory Capacity for Courts
Chambers of the Supreme Court of North Carolina (Nagel Photography / Shutterstock.com).Constraints on Democratic Decision Making Are Not Necessarily Anti-Democratic
American Tradition in Theory and Practice
In response to: The Unforgettable Fire: Tradition and the Shape of the Law
Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving…
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Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts,…
In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…
The Courts and Tradition: A Begrudging Respect
In response to: The Unforgettable Fire: Tradition and the Shape of the Law
Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts, torts, property, and more. On the other hand, it strikes me that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries. Years ago, I had…
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Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…
In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…
When Judges Talk to Politicians
Imagine, if you will, that a president who has not shown himself overly careful about a strict observance of the Constitution, announces that he does not propose to abide by the term limits of the Twenty-Second Amendment, and that he proposes to run for a third term. He notes that the members of the Supreme Court might have a problem with this, but argues that they should not have the sole authority to interpret the Constitution, that he also might do so when backed by the will of the people, and that democratic government is the grundnorm of the Constitution…
The Zeitgeist and the Judiciary: a 100th Anniversary Reflection
A century ago, a brilliant young lawyer named Felix Frankfurter spoke at the 25th anniversary of the Harvard Law Review. His speech was entitled “The Zeitgeist and the Judiciary.”
At 30, Frankfurter was already a central figure in progressive circles, and would prove one of the most influential American jurists of the 20th century. During the first quarter-century of his adult life, he maintained a regular correspondence with Justice Holmes, regularly wrote legal commentary for Herbert Croly’s new magazine, The New Republic, co-founded the ACLU, and served as advisor to Franklin Roosevelt. In the next quarter-century (1939-1963), he became one of the most influential and prolific Supreme Court justices in American history.
“The Zeitgeist and the Judiciary” is a remarkable exemplar of early progressive jurisprudence. His brief, candid remarks display the main aspects of the progressive political and constitutional project.
The Folly of Judicial Restraint in an Age of Judicial Supremacy
In the past few months, we have heard a great deal about “judicial restraint.” In particular, Progressives have complained that if the U.S. Supreme Court strikes down the Obamacare mandate that all Americans carry health insurance, it will be a case of “judicial activism” on the part of the Supreme Court. And conservatives, they say, have long supported judicial restraint, rather than judicial activism. Some conservative commentators have asked whether this categorization is fair. That’s an interesting question from a party perspective, but it pushes aside another question: whether the idea of judicial restraint is compatible with current notions of judicial supremacy?
