Category Archives: There Never Was a Golden Age

Law & Order: Originalism

Legal conservatives are always whining about “originalism,” by which they mean “the law back when the Constitution was drafted,” but which really means “the description of law ca. 1787 that we pulled straight out of our tucheses and that coincidentally happens to support whatever rich and/or white people want the result to be in 2023.” For as-yet undisclosed but intensely law-nerdy reasons, I’m poking around in cases from that era and stumbled across evidence that those white guys in the constitution-drafting era really were much more sophisticated about the law:

The new trial had been pressed on five grounds:

1st. That the verdict was against the weight of evidence.

2d. That Herman Skiles, one of the jurors, some weeks before the trial, had betted a pint of wine with colonel James Mercer, that a verdict would go for the plaintiff, and thereby shewed his partiality.

3d. That five of the jurors eat or drank during the trial, at the expence of one of the lessors of the plaintiff.

4th. That two of the jurors declared their opinion in favour of the plaintiff before they heard the testimony.

5th. That Herman Skiles aforesaid, and two others of the jurors, threatened to throw three others of the jury, who dissented from them in opinion, out of the window of the second story of the Court House, where they were deliberating on their verdict, unless they would agree to find a verdict for the plaintiff.

Goodright v. McCausland, 1794 WL 615, at *1 (Pa. 1794). So, yeah, let’s take all our legal cues from that august system as it existed in the late 18th century.

There Never Was a Golden Age, Part II

15 Historical Complaints About Young People Ruining Everything | Mental Floss.


Plus I just love the idea of “mental floss.”  So many days that would come in handy!


There Never Was a Golden Age

I keep meaning to write a long, interconnected, analytical post about how annoyed I get with the concept that Times Are Bad Now, Not Like the Olden Days.  My theory is that the Olden Days were good and bad in many and varying ways, just as our present times are good and bad in many and varying ways, and all of this for the simple reason that we’re talking about the history of human beings, a notoriously brilliant, stupid, open-minded, prejudiced, generous, stubborn, violent, peaceful, and above all self-centered species.

But another signal trait of our species is procrastination — think any other species would have survived, evolutionarily speaking, if they procrastinated like we do?  “I’ll worry about gathering acorns later.”  etc. — so of course I have never gotten around to writing that definitive, all-encompassing psycho-history-of-the-human-race post.  So I thought I’d start a new category — #thereneverwasagoldenage — and just add examples as I find them.

Today’s example:  there never was a golden age of lawyerly civility.  Every time some lawyer does something buttheaded these days, you hear the unison tsking of mainstream tongues about how it didn’t used to be like that, when we could settle a case over a G&T at the club instead of having to fight about depositions and interrogatories and (big, privileged, sigh) metadata.  Herewith, an example of legal argumentation in the good ol’ days of mid-1960s Mississippi.  First, the background of the case:

[P]etitioners and other Negro and white Episcopal clergymen undertook a ‘prayer pilgrimage’ in 1961 from New Orleans to Detroit. The purpose of the pilgrimage was to visit church institutions and other places in the North and South to promote racial equality and integration, and, finally, to report to a church convention in Detroit. Letters from the leader of the group to its members indicate that the clergymen intended from the beginning to go to Jackson and attempt to use segregated facilities at the bus terminal there, and that they fully expected to be arrested for doing so. The group made plans based on the assumption that they would be arrested if they attempted peacefully to exercise their right as interstate travelers to use the waiting rooms and other facilities at the bus terminal, and the letters discussed arrangements for bail and other matters relevant to arrests.

Pierson v. Ray, 386 U.S. 547, 552 (1967).  The point of the case is that the clergymen had standing to challenge segregation despite the fact that they did so knowing they were going to be arrested.  But here is an example of just how civil it was in court in the olden days:

the Court of Appeals reversed and remanded for a new trial on the . . . claim against the police officers because defense counsel had been allowed to cross-examine the ministers on various irrelevant and prejudicial matters, particularly including an alleged convergence of their views on racial justice with those of the Communist Party.

Id. at 551.  Something (one small example among many) to think about next time some old fart lawyer (in whose ranks I now count myself) tries to explain how much better it used to be.