The Court, Congress, and the People

There was a time when lawyers formed a powerful counterpoise to radicalism in these United States. The American legal mind has traditionally been a conservative mind, venerating higher law, stare decisis, and what Burke called the “prescriptive rights.” The leaders of the profession—men like Story and Kent—had an abiding respect for history and the Black Letter philosophers; their knowledge of the law extended all the way from the Law of Twelve Tables to the treatises of Coke and Blackstone. Tocqueville attributed their conservatism to the peculiar character of legal education: Men who study the law acquire “certain habits of order, a taste for formalities and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit.”

Comes now the modern legal counselor. If he has ever heard of the Code of Justinian, he has probably never read it. His grasp of legal history is apt to be feeble; his understanding of the natural law tradition and of legal philosophy in general is likely to be shallow. The compass of his legal study has frequently been narrowed down to that of a law clerk, who simply records the current cases. His mentors are Oliver Wendell Holmes (“I don’t know what truth is”) and the New Deal lawyers. Consciously or unconsciously, he plods under the spell of Legal Realism, which promises a science of law and “social justice” in our time.

JM

About the Author

James McClellan

There was a time when lawyers formed a powerful counterpoise to radicalism in these United States. The American legal mind has traditionally been a conservative mind, venerating higher law, stare decisis, and what Burke called the “prescriptive rights.” The leaders of the profession—men like Story and Kent—had an abiding respect for history and the Black Letter philosophers; their knowledge of the law extended all the way from the Law of Twelve Tables to the treatises of Coke and Blackstone. Tocqueville attributed their conservatism to the peculiar character of legal education: Men who study the law acquire “certain habits of order, a taste for formalities and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit.”

Comes now the modern legal counselor. If he has ever heard of the Code of Justinian, he has probably never read it. His grasp of legal history is apt to be feeble; his understanding of the natural law tradition and of legal philosophy in general is likely to be shallow. The compass of his legal study has frequently been narrowed down to that of a law clerk, who simply records the current cases. His mentors are Oliver Wendell Holmes (“I don’t know what truth is”) and the New Deal lawyers. Consciously or unconsciously, he plods under the spell of Legal Realism, which promises a science of law and “social justice” in our time.