My friend Dan Caldwell of Concerned Veterans for America talks with Reason TV about the VA scandal. "This is not a resource issue at the V.A.... This is an issue of...a management that...knows it doesn't have to do its job to get bonuses and keep their jobs."
Undoubtedly one cause of the tendency of scientific law to become mechanical is to be found in the average man's admiration for the ingenious in any direction, his love of technicality as a manifestation of cleverness, his feeling that law, as a developed institution, ought to have a certain ballast of mysterious technicality. "Philosophy's queerest arguments," says James, "tickle agreeably our sense of subtlety and ingenuity." Every practitioner has encountered the lay obsession as to invalidity of signing with a lead pencil. Every law-teacher has had to combat the student obsession that notice, however cogent, may be disregarded unless it is "official." Lay hair-splitting over rules and regulations goes far beyond anything of which lawyers are capable.
--Roscoe Pound, Mechanical Jurisprudence, 8 Columbia L. Rev. 605, 607 (1908)
Does it just mean to obtain a ruling in the client’s favor? It can’t just mean that, can it? We wouldn’t say that a lawyer “won” a case if he bribed the judge, or threatened the judge, and got a ruling in his client’s favor that way. I would think we would not say he “won” the case if he simply lied to the judge about the facts, and managed to get away with it. We wouldn’t say a lawyer won a case if a corrupt judge had a predetermined verdict and issued his ruling without any regard to what the lawyers argued. And for the same reason, I don’t think we can say that a lawyer has won a case if he makes a wrong argument, but the judge falls for it, or endorses it for corrupt or otherwise indefensible reasons.
Law is a process of persuasion, and while persuasion may rely on arts like rhetoric, that isn’t the whole of it. Instead, the decision we seek in the legal process is a ruling in the client’s favor for the right reasons, or in the right way. Forcing someone to agree with you, or defrauding them into accepting what you say, or pressuring him into giving in, is not persuasion. And a ruling in the client’s favor for the wrong reasons—simply because the lawyer has fooled the judge, or confused him, or manipulated him for reasons other than the merits of the legal argument—isn’t really a “win,” is it?
If I argue in court “My client didn’t commit the murder because purple monkey dishwasher,” my argument is senseless. It’s not a logical or meaningful statement at all. If the judge rules in my favor anyway—as a personal favor, or because the mayor has secretly ordered him to do so, or because he finds my reference to The Simpsons amusing—then I cannot really be said to have “won” my case in a legal sense. I’ve just managed to secure a ruling in my favor, one which rightly ought to be reversed on appeal. But even if it is not reversed, what I’ve done is to fool the court, not to persuade the court. And in that sense, I have not actually done what lawyers are supposed to do—which is to make an argument that deserves to prevail. “Deserves” meaning, a meritorious argument—an argument that correctly accounts for the facts, or correctly interprets the law, or correctly interprets the Constitution, et cetera.
I have on occasion known lawyers to make bad arguments. Shocking, I know. But sometimes they obtain a ruling in their favor from the judge—and then gloat that the argument can’t have been that bad, after all, since they won! But that does not follow. It would not even follow if the decision is upheld on appeal.
Of course, if one holds—as today’s positivists do—that there are no right answers to legal questions, and that whatever a court says just is the law, then none of what I’ve said is correct. On that premise, there are no such things as frivolous legal arguments (or valid ones), because whatever manages to obtain a verdict in the client’s favor just is ipso facto a win. But if one believes, as I do, that there are right answers to legal questions, correct ways to interpret the law, and a genuine difference between a good and a bad legal argument—that is, if one believes that there is objectivity to the law—then a court decision in the lawyer’s favor is not itself proof that the lawyer’s argument was correct. Instead, the lawyer’s argument is correct only if that argument is actually correct on the merits. (This obtains on whatever criteria for “correct” one uses—textualism, originalism, whatever—except for positivism, for which there is no criteria for “correct” except for the court ruling itself.)
I’m a great admirer of MEP Daniel Hannan, who is certainly among the most eloquent and persuasive voices for freedom in the Western World today. But his July 4th essay for National Review Onlineperpetuated yet again the hoary conservative myth of the American Revolution as non-Revolution, a myth that flatters conservative ideology—but which on both ideological and historical grounds, rings hollow. When Hannan writes that “The men who [fought] believed that they were fighting for their freedoms as Britons,” and, “When they called themselves Patriots…meant that they were British patriots, “ he says what is plainly false.
It is true, of course, that in the years that led up to the Revolution, the Patriot cause was framed in terms of the British constitutional tradition, and that arguments over General Warrants, or trial by jury, or taxation and representation, were framed in terms of violations of British constitutional rights. But when Independence came, the Americans threw off loyalty to the British crown, and with it any reliance on that constitutional bequest, and staked their cause instead on the universal rights of mankind—on those rights with which all people are endowed by “nature and nature’s God.”
In the Declaration, they said they were no longer British. They cannot have simultaneously demanded the rights of Britons, or called themselves British patriots—and, indeed, they did not.
Some people are actually giving prominence to the claim by Prof. Danielle Allen that the period that appears after the word "happiness" in the Declaration of Independence is errant, and that this changes the meaning of the sentence because it shows that the founders thought government had an important role to play...something something something liberalism.
This is, to put it plainly, idiotic. First, the idea that this period is "a typo" imposes anachronistic standards of punctuation on an era that was far less standardized on such matters than our own. One need only look at the spelling and capitalization of the Declaration to realize this. There are actual errors in the document at the Archives, where the engrosser was forced to use a caret and write a word above a sentence. But while the period in question is erroneous by our standards, it was not necessarily an "error" in 1776, a time when gentlemen would often end letters with "Yr. most Obdt: Servt." or something. Jefferson himself idiosyncratically avoided capitalizing the first word of each sentence. Punctuation, capitalization, and spelling rules were just more flexible then.
Second, if one actually reads the sentence in question, its grammatical structure is obvious: it is a list of "that" clauses spelling out the "truths" that the representatives hold to be self evident. The first is that all men are created equal. The next is that they are endowed by their creator with certain unalienable rights. The next is that these rights include life, liberty, and the pursuit of happiness. The next is that government is instituted in order to secure these rights. One would have to be a very poor grammarian to think that any of these constituted the end of the sentence. In that sense, yes, a period would be out of place. But I know of no reason to think anyone believed that a period, if any, actually signified such. Any reasonable person fluent in English would realize, whether he saw a period there or not, that the sentence did not end at "happiness." There's just no evidence anyone was or could be misled by this alleged error.
Finally, the notion that this "discovery" should change our understanding of the document or its authors is unreasonable. There's no denying the founders thought government was important. Far stronger evidence for this is to be found in the Declaration's list of grievances, which complain about the King's obstructionism with regard to colonial self-rule--dissolving legislatures, for instance, or refusing his assent to laws the most necessary for the public good. But more importantly, the clause in question says government exists "to secure these rights," not to manipulate those rights, create them, expand them, redistribute them, et cetera. This sentence in no way justifies the conclusion that the founders believed in anything like expansive, Progressive-style government. And if this sentence were in any degree unclear, which it isn't, a basic acquaintance with the beliefs of the founders would end any confusion. "I am not a friend to a very energetic government," said Jefferson. "It is always oppressive." The founders well knew--punctuation notwithstanding--that government is a terrible threat to the rights with which we are naturally endowed, and that it must be very carefully limited so as not to oppress people while claiming to do them good.
It takes a great deal of effort to misrepresent the beliefs of the founding fathers, because they spoke so clearly. Trying to get people to argue over punctuation while ignoring the words and their context, is just another instance of that fool's errand.
At less than 200 pages, Sandefur makes a succinct but no less devastating set of arguments that attack the most obnoxious and destructive doctrines stemming mostly from the Progressive Era. Although some conservatives may be uncomfortable with Sandefur’s opinions about the expansive role he ascribes to the 14th Amendment, his argument presents a viable and principled opportunity to restore the individual liberties that Americans have lost over the past century.
This is my personal blog. The opinions expressed here are my own, and in no way represent those of the staff, management, or clients of the Pacific Legal Foundation, the Cato Institute, or the McGeorge School of Law.