Friday, February 27, 2015
Lest anyone lamenting the state of affairs that now persists in constitutional adjudication at the Supreme Court think that we just need return to an earlier, purer time (and one also without law clerks given to verbosity), these 1827 reflections by Charles Hammond (occasioned by Ogden v. Saunders) may supply something of a corrective:
I wish to detract nothing from the high reputation of the judges of the Supreme court, either as men or as lawyers. I must, however, be permitted to express my opinion, that they have run into some very mischievous errors. One is the deep admixture of political expediency, which is infused into and pervades many of their decisions, especially in expounding the constitution. It was once a leading axiom, that justice was blind as to every thing, but the case immediately before her. She could neither see parties, nor look to future consequences. In the Supreme Court this axiom is not regarded. Justices there look with eagle eyes to the parties in the cause, and to the connection between the case to be adjudicated, and its most remote, and often improbable bearings upon the same, or other parties in different situations. Thus, in attempting to shape a decision in one case, so as to quadrate with all possible cases, policy & expediency become the principal topics of examination. And a judicial decision is made to bear a strong analogy to legislative enactment.
Another of these errors is the substitution of an elaborate train of reasoning, for brief and explicit decision. This is closely connected with the first error, and in a good degree originates in it. When a proposition is laid down, and either narrowed or extended with a view to remote and merely supposable consequences, all these must be explained. The probability that they may arise, the evils they may bring with them, the indispensable necessity of obviating these anticipated evils, must all be made out. Thus a legal opinion, instead of deciding the case in hand, is made to resemble the thesis of a student, and consists of hypothesis and inference, spreading over an almost interminable surface.
Charles Hammond, "Insolvent Laws," Cincinnati Gazette, March 27, 1827