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A Lovely Little Legal Realist Rant,

from Felix Cohen's Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935). In a sense, Justice Holmes's "Think things, not words" captures it well and tersely, but sometimes the longer version has its value:

I. The Heaven of Legal Concepts

Some fifty years ago a great German jurist had a curious dream. He dreamed that he died and was taken to a special heaven reserved for the theoreticians of the law. In this heaven one met, face to face, the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life. Here were the disembodied spirits of good faith and bad faith, property, possession, laches, and rights in rem. Here were all the logical instruments needed to manipulate and transform these legal concepts and thus to create and to solve the most beautiful of legal problems.

Here one found a dialectic-hydraulic-interpretation press, which could press an indefinite number of meanings out of any text or statute, an apparatus for constructing fictions, and a hair-splitting machine that could divide a single hair into 999,999 equal parts and, when operated by the most expert jurists, could split each of these parts again into 999,999 equal parts. The boundless opportunities of this heaven of legal concepts were open to all properly qualified jurists, provided only they drank the Lethean draught which induced forgetfulness of terrestrial human affairs. But for the most accomplished jurists the Lethean draught was entirely superfluous. They had nothing to forget. . . .

Pyrthroes (mail):
Read the book discussing Holmes' conceptual origins, immediately post-dating his reality-grounding service in the Civil War. Since our Founders were by definition not Constitutional Lawyers (because, you see, the Constitution did not yet exist), "The Metaphysical Club" puts a peculiar gloss on early Pragmatism's effects. "Principle" is relative, that is, in the eye-of-the-beholder; words as such confuse "sense and sensibility", that is, the Symbol with the Sign [the Map is not the Territory]; in the "real world", which Holmes viewed as akin to Antietam amd Shiloh, "conflict resolution" must be key-- and the key to resolving conflicts is resort to semantic legalisms, NOT "the Law."

So Holmes, for all his virtues, did believe that "law is what the Court [meaning himself, as head of it] says it is." Absent great crises, assuming no major generational conflicts, a Court can stagger on for awhile, jiggering statutes "pragmatically"-- ignoring Constitutional Principle because after all, "anything goes, so long as Humpty Dumpty says so."

Oaths, personal integrity, neither experience nor intelligence govern here. There is only Oliver Wendell Holmes, who assures you that he "rules" only for the best.
Given 215 years of history, from Marbury to Roe,we could cure this attitude, or at least protect against it, in common-sense procedural ways. But Constitutional dynamics sink beneath the accumulated weight of spurious precedent, self-interest, political inertia resulting from popular ennui. So eventually --say by the 23rd Century (because large polities have never yet persisted longer than 400 years)-- the United States as presently constituted will simply deliquesce. Word-for-word, the Constitution of 1787 will remain on-record, but as a relic, every one of its substantive Federalist, Limited Government, Popular Sovereignity principles and provisions long subverted to their precise opposites.

Wanna bet? Let's ask Holmes himself, and FDR, to hold the stakes.
2.16.2006 12:13pm
PersonFromPorlock:
Just out of curiousity, in modern jurisprudence how many legs does Mr. Lincoln's famous dog have?

Oh - one other question: is a judge who cannot distinguish right and wrong, because he will not, functionally insane?
2.16.2006 12:18pm
George Gregg (mail):
Word-for-word, the Constitution of 1787 will remain on-record, but as a relic, every one of its substantive Federalist, Limited Government, Popular Sovereignity principles and provisions long subverted to their precise opposites.


I think this each time I consider where Commerce Clause interpretation is taking us.

The clause is now essentially meaningless as a limitation of the scope of the power of federal government, as it is now interpreted to allow, well, virtually anything to be regulated under it.
2.16.2006 12:47pm
Hanah Volokh (mail) (www):
We read this article for my Legal Justice class, but I think this portion was omitted. I'm glad you posted it!
2.16.2006 12:56pm
Justin (mail):
Holmes, Cohen...what's next, Thurman Arnold? I think I took this class in law school.
2.16.2006 1:04pm
MDJD2B (mail):
But Constitutional dynamics sink beneath the accumulated weight of spurious precedent, self-interest, political inertia resulting from popular ennui. So eventually --say by the 23rd Century (because large polities have never yet persisted longer than 400 years)-- the United States as presently constituted will simply deliquesce. Word-for-word, the Constitution of 1787 will remain on-record, but as a relic, every one of its substantive Federalist, Limited Government, Popular Sovereignity principles and provisions long subverted to their precise opposites.

The environment also changes, rendering institutional arrangements creaky, if not obsolete. The rise of multinational banks and corporations able to move money around the world at the speed of light strains the Commerce Clause (and, if we can modulate the economic cycle, do we really want local governance to prevail at the cost of a depression every 10-20 years?). As large armies and weapons of mass destruction can be moved rapidly, declarations of war become quaint-- if not obsolete. Electronic communications, and the ability to use them for crimes and international agreesion coreat problems that the authors of the phrase "unreasonable search and seizures" could not contemplate.

So we have to adapt the 1787 text to altered circumstances while maintaining as much fidelity as practicable to its text and the ideas that motivated it. It seems to this tyro that the appropriate approach lies somewhere between the originalism of Clarence Thomas and the pragmatism of W. W. Holmes et al.
2.16.2006 1:22pm
Super-Realist:
I know a fellow who taught Con Law at a top five law school. He told me privately that OF COURSE the agenda is to interpret the commerce clause so that the Federal government has police powers. Limited &Enumerated Powers--my ass! Look at Raich.
2.16.2006 1:25pm
Vorn (mail):
Maybe the ultimate test that allows one to decide between formalism and realism is this. Does the ideology of Supreme Court justices matter? Even formalists have to concede that it does; they must at least admit that there is a significant change when realists are appointed instead of formalists.

Would formalism be possible if you had only one Supreme Court justice devoted to a particular formalist methodology? I don't think so, for the reasons hinted at in the excerpt that Professor Volokh chose. But even if it were, we know that as a practical matter, we are going to be governed by multiple Supreme Court justices with conflicting methodologies.

Ultimately, jurisprudence IS going to fluctuate based on long-term popular opinion. If Democrats win the Presidency, you can expect a different sorts of Supreme Court appointment than if Republicans win. So, in practical terms, the meaning of the Constitution is likely to fluctuate. There are no Constitutional provisions requiring Supreme Court justices to be formalists! So, realistically, you can throw all that formalism out the window. Even if it was possible, it will never happen over the long term; not under this government.

James Madison was right. Paper guarantees do not mean very much. What matters is structure. For the first part of our history, the First Amendment did not protect much; now it protects much more. But the text has remained constant. In other words, ultimately the meaning of the First Amendment and other paper guarantees is going to fluctuate, probably rather slowly, so at to reflect contempory societal views. Originalism will always be a losing battle; any victories are destined to be temporary.

It probably is naive to expect too much out of a written Constitution. Politics, democracy, and social views matter more in the long run. That should be clear even to those that idealize formalism. Which is not to say that a written Constitution lacks certain advantages; there is a tendency for meaning to gravitate around the text to a greater or lesser degree. It also slows the process of change and thus adds stability. But, expecting too much is a formula for disappointment, because Madison really was right when he focused more on structure, i.e. seperation of powers, federalism, etc. It is the seperation of powers among jealous branches that constrains government, not text.

Here is an example of what I mean. Social movements like the National Rifle Association are going to be more important to preserving the right to keep and bear arms as an individual right than the text of the Second Amendment. Legal arguments may influence particular cases, but larger trends are going to drive ultimate results. Of course, particular cases may influence larger trends to a greater or lesser degree; but ultimately, it is the larger trend that will dictate. So, even formalists should be realists; because even if formalism is possible, it just is not going to happen.
2.16.2006 2:07pm
eddie (mail):
Interesting how the initial responses to the quoted material seem to be cover your as rationalizations and expression of "not me". Even for the originalist or the textualist, there are those abstractions, fictions and purely logical constructions upon which so much weight must be placed.

On the one hand there is always the temptation to de-ify the text (see, e.g. most religious fundamentlism), because at least there is something tangible that seems to be substantive and unchanging inherent in the words. However, we are then lead immediately into the Platonic paradox of the words only being a shadow of the meaning therein. And when men aspire to go beyond their own history and the meanings and logisims inherent in their time, can we today speculate that the meaning that is useful today is the meaning that was aspired to then. Do we ignore that aspiration (as originalists and textualists require) in favor of the apparent certainty of purely linguistic analysis?

I would hope that at some point the issue would revolve around a more general principle of justice, which like obscenity, can not be exactly defined but can abe recognized when seen.

Just as in a democracy the people must trust that those who are voted into office will perform their duties with good faith, so too should the legal community nurture the trust that our jurists have achieved a certain knowledge of the law and the ability to perform their duties with good faith. The trend, however, has been to promulgate a theory of justice that is formulaic, and when a jurist refuses to apply such a mechanical application of the law because of a "judgment" that the juirst is repudiated as having a "political agenda". Once that pandora box was opened, it is difficult to expound any reasoned justification for any judges--wouldn't computers provide the type of analysis that Thomases of the legal world are demanding.

Lawyers, heal thyselves. Law professors, take responsibility for the consequences of the theories and theorizing that have given birth to the entangled webs found in Enron's machinations (all lawyer created and inspired) or in arguments that torture can be rationalized, and not merely stand by and marvel at the beauty of the logical fog that arises under your tutelage. This is life, not moot court.
2.16.2006 2:09pm
Tony (mail):
Heh.

The post makes me think about the deep connections between law and software design. In software, we try to come up with abstractions of concepts like "document" or "gene" or "customer" in such a way that we can perform valid automated inferences and transformations on representations of these "real" objects. I, too, dream of a Software Heaven where the Ultimate Database Schema allows one to represent all data and answer all questions about it.

But such an Ultimate Schema is as much an illusion as Perfect Law. The more perfect you try to make a schema, the harder it gets to work with. So, just as not all data can be represented in a single perfect database, not all conflicts can be resolved by a single perfect body of law.

You have to fudge. (Or perhaps more to the point, you have to make sausage. ;-)
2.16.2006 2:31pm
Tennessee Craig (mail):
Not to elide the debate, but I couldn't convince Lexis to pull this article up, and the librarian here is having a heck of a time finding any easily available source for this article. Anyone know where or how to get a copy?
2.16.2006 3:29pm
Michael B (mail):
And a lovely rant it is.

"But for the most accomplished jurists the Lethean draught was entirely superfluous. They had nothing to forget. . ." Felix Cohen

This penetrates to the heart of so much, as does Pyrthroes's elaboration, though there may be reasons to refrain from Pyrthroes's pessimism (assuming that's what it is).

Antinomianism (conceived in a thorough-going, post-modern, etc. sense) does not - certainly not in some type of inexorable, ratiocinated sense - follow from the fact that law's ideality cannot be grasped in a positivist or definitively prescribed sense. Holmes invokes a substantial principle, but one itself which has too often been elevated to a position of primacy and overlord when it's better used to temper and prove and test, as a more modest, governing dialectic.
2.16.2006 3:43pm
Sebastian holsclaw (mail) (www):
"So we have to adapt the 1787 text to altered circumstances while maintaining as much fidelity as practicable to its text and the ideas that motivated it. "

Sure, but who is "we"? We the people have the amendment process available to us. Under a modern realist approach to jurisprudence is there a reason to bother with amendments?
2.16.2006 6:38pm
Ubertrout (mail) (www):
I read this for a class a while ago...I laughed heartily at the close of the section excerpted, then reflected for a moment that I truly was a nerd.
2.16.2006 7:12pm
Ubertrout (mail) (www):
Oh, and for those law students (and I suppose profs) here, you need Hein to pull this. Link.

Cohen lists the original source of this section as:
Von Jhering, Im Juristischen Begriffshimmel, in Scherz und Ernst in der Jurisprudenz (11th Ed. 1912) 245.

For those without Heinonline, neither Westlaw nor Lexis covers journals this old.
2.16.2006 7:19pm
Michael B (mail):
For something of an updated account of Cohen's logic, using deconstructionist and post-modern terms, Joel Cornwell's Legal Writing as a Kind of Philosophy, rightly understood, further clarifies why it makes sense to turn the tables around, ironically, back upon Cohen's and Cornwell's presentation. As a counter-weight to formalism, an overly wrought idealism, etc., various realist/relativist approaches make sense, as correctives. Conceivably, Cohen might be read in those more limited terms, though such a reading is probably contrary to Cohen's intent as he was a philosophically astute commentator. Not so however someone like a Cornwell, who is even more decidedly, and in fact irretrievably, absolutizing his relativist/realist approach.

The question: "Under a modern realist approach to jurisprudence is there a reason to bother with amendments?" is well put.
2.16.2006 7:54pm
Robert Schwartz (mail):
"The rise of multinational banks and corporations able to move money around the world at the speed of light strains the Commerce Clause (and, if we can modulate the economic cycle, do we really want local governance to prevail at the cost of a depression every 10-20 years?)."

I knew there was a reason why the Federal government had to be able to regulate the growth and use of herbs in a woman's kitchen garden.
2.17.2006 8:06am
WB:
Sounds like Cohen didn't get out much.
2.17.2006 11:19am