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October 10, 2004

Bush (via Dave Neiwert) makes my head spin

By Jim Dallas

Dave Neiwert has his own spin on Bush's Dred Scott ramblings. What I find compelling here is Neiwert's linking of "strict constructionism" with "legal formalism," which lit up my student's brain when I read it. Yes, yes, Neiwert is making a totally obvious point, but you know I've been spending more time trying to learn about simple things like the statutes of fraud and personal jurisdiction, and less time pondering the forms. But what the hell.

If I've learned anything about the philosophy of law so far in this first semester, it is that for atleast a century almost all credible legal scholars have considered legal formalism to be an archaic, obviously wrong theory that was laid to rest years ago. Sort of like how biologists and spontaneous generation (a theory that rose and fell contemporaneously with legal formalism), or geographers and the flat-earth hypothesis.

A few weeks ago Dean Rapoport, who is probably both the smartest and also most perky person I have ever met, came down to lecture our contracts class on Wood v. Lucy, Lady Duff-Gordon. She almost had a joygasm when lecturing about Judge Cardozo's famous line in the opinion that begins with the phrase "[t]he law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman..."

So here we have Bush, apparently endorsing a return to legal formalism. Building a bridge to the nineteenth century, if you will. But atleast he thinks slavery is bad; his "ownership society" proposal notwithstanding.

I wonder if Bush had any idea what he was talking about. I know that I surely do not.

Posted by Jim Dallas at October 10, 2004 11:17 AM | TrackBack


Yeah I was coming over here to tell you about said "Dred Scott means anti-abortion" spin when I read this.


Here is a link that explains some of the rationale.

The legal formalism thing is pretty weird too. Fun times . . . or not.

Posted by: Melissa at October 10, 2004 12:21 PM

As a fellow law student, Jim, I don't think I can fully agree with you here. I don't see "strict constructionism" as being equal to legal formalism. Strict constructionism holds to the proposition that the people who wrote the Constitution knew what they were doing, and that we should hold ourselves to what they said, as modified by the PEOPLE.

It is the province of the judiciary to adapt the Constitution to fit with the changing times we live in. I can't argue with that. However, the writers of the Constitution built in an amendment process to change it when necessary. It is through this, and not through "penumbras" found by 5 out of 9 judges to all of a sudden exist, that we should be making our adaptations.

The Supreme Court and our judiciary should stick to ruling on the areas that are actually covered in the Constitution, as these are the areas that the Federal government were meant to address.

Posted by: Drew at October 11, 2004 09:21 AM
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