Friedman on the 1st generation

November 04, 2005

I was reading Lawrence Friedman's A History of American Law and came across a lyric passage about the judges who effectively created the American legal system at the start of the nineteenth century: John Marshall, Joseph Story, James Kent, Lemuel Shaw, and the rest.

They were, at their best, far-sighted men, impatient with narrow legal logic. Marshal, Gibson, and Shaw could write for pages without citing a shred of "authority." They did not choose to base their decisions on precedent alone; law had to be chiseled out of basic principle; the traditions of the past were merely evidence of principle, and rebuttable. Their grasp of the spirit of the law was tempered by what they understood to be the needs of a living society. Some were conservative men, passionately attached to tradition; but they honored tradition, not for its own sake, but for the values that inhered in it. And they became famous not because they stuck to the past, but because they worked on and wtih the living law. Most of the great judges were scholarly men; a few were very erudite, like Joseph Story, who could stud his opinions with acres of citation a thing Marshall tended to avoid. The great judes were creative, self-aware, and willing to make changes.
Friedman, A History of American Law, 135.
I was struck by the passage both for its language - Friedman ventures into the grand style himself - and for its pertinance to the twenty-first century debates about the traits required for a Supreme Court Justice. As others have pointed out before me, even conservative founders believed in a living Constitution.

Posted by Red Ted at November 4, 2005 10:38 PM | TrackBack