Think Free, Live Free

An intellectual and visceral examination of all things free, with a healthy emphasis on the right of free men to own arms.

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Location: Macon, Georgia, Southeast United States

Co-founder of the Mercer Law School Second Amendment Society and fan of freedom at home and abroad. Admirer of Thomas Jefferson, James Madison, and Ronald Reagan. Detester of political correctness and the false dogma it imposes. Not entirely as vain as this profile sounds.

Tuesday, April 05, 2005

American Legal Unrealism

Who do we have to thank for the current judicial activism bemoaned by many on both sides of the political spectrum? Well, none other than the hero of American law, Oliver Wendell Holmes, Jr. and his friends, the American Legal Realists ( Americal Legal Realism was a school of legal theory that began to take prominence in the early 20th century. Before that time, legislating from the bench, all so common today, was not the role courts took. Sure, there were some bad decisions, the Dred Scott case comes to mind, but we weren't to the point we are today.

American Legal Realists were mostly progressives. They liked redistributive economic policies, and were selfless protectors of civil rights. O.W. Holmes, Jr. was such a defender of the people that he voted to uphold the state mandated sterilization of retarded individuals. See Buck v. Bell, 274 U.S. 200 (1927). Okay, so the American Legal Realists weren't that interested in people's rights, just in socialist economics and allowing judges the freedom to implement policies that they deemed necessary.

Some American Legal Realists wanted to infuse other areas of scholarship, mainly sociology, with law. Mixing sociology and law is like taking a magical trip to a place where fairness is only accomplished when the wealth of the hard working has been distributed to the many and people are made to feel good about themselves and absolved of responsibility for their lives. In other words, its a scary place.

American Legal Realism cast doubt on the importance of rules and facts, instead placing the importance on judges. This lead to a morally relative grey area where judges are expected to make the best decision for everyone. Their stated goal was to make law more predictable by focusing on what the judge will do. Unfortunately, giving judges the power to decide what is best based on their whims is hardly the most predictable system.

This theory reminds me of today's progressives telling us in warm and fuzzy soundbites how nice our Constitution is because it is a living, breathing document. What relevance does a changing Constitution have besides functioning as an authorizing document for the Government of the day? American Legal Realism and a "living Constitution" stray far from what our founding fathers imagined for our legal system.

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson to Wilson Nicholas, 1803. ME 10:419

Think Free, Live Free


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