• But is this actually any more true than the opposite conclusion, embodied in the statement Chief Justice Hughes made to the young Justice Douglas that "the Constitution means what five votes on the United States Supreme Court say it means"?
  -- EbenMoglen - 20 Jan 2008

(my ConLaw? casebook gives a number of clear examples, such as a foreign born candidate - Ahnold, anyone? - seeking to assume the presidency after having been voted in by a majority of the electors). Holmes says, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." But the only reason a 34 year old can't be president is that so it was laid down in the time of George the Washington, and no inquiry into the rationale for the rule (that only experienced people should lead) and whether it is breached in the particular instance (this particular 34-year old is omnicompetent and the best choice for president) is permitted.

• But that's not true. You had a reason, and you gave it. You are confusing a definitional property of law, that it commands something, with the quality of prescriptive law, that it derives its authority from its antiquity. You haven't heard Holmes clearly.
  -- EbenMoglen - 20 Jan 2008.

So we seem to have a system where certain questions of law can be answered only with reference to the text of a document out of the shadowy past. And, of course, any case that turns on a statute is similar in that, while a range of interpretations is allowed, all argument must be conducted with reference to the statute and free-floating policy rationale is barred (though non-free floating policy rationale, i.e., policy dictates that we adopt this particular interpretation, is permitted).

• Hence, from an uncertain major premise and a disestablished minor premise, a doubtful conclusion. Do we seem to have such a system? Not to me. Precisely on the basis of Holmes' realism, I see both courts and administrative agencies exercising law-making power based entirely on the rationalization of policy judgments exogenously arrived at. The seeming you seem to wish on Holmes is actually the opposite of how things seem to have seemed to him based on what he wrote.
  -- EbenMoglen - 20 Jan 2008.

Holmes seems to be referring to cases of common law where judges are not bound by a particular Contitutional provision or statute. But there are many Constitutional or statutory cases, and judges find themselves bound by the opinions of august bodies from the past every time they decide such cases. One difference is that the bodies that pass statutes are legislative bodies answerable to the people, and judges are not supposed to feel free to contravene the authority of the people's legislative representatives by themselves legislating. But what about a case where a statute on the books was passed in 1830 and hasn't been thought about since? A judge would still be bound by it, even though there would be no basis for his decision other than that "so it was laid down in 1830 [when the people had different concerns and wouldn't necessarily have thought about today's conditions]." The more I think about it, the more I see examples where legal questions continue to have their answers depend on the past and nothing more. Should courts then be free to disregard the weight of history, and instead inquire only into the reasons behind the historical statute? But no one thinks we should do this with the Constitution - a 34 year old can't be president, period, even if the reasons for the Constitutional provision are not in play vis a vis a particular candidate. How can this blind respect for the Constitution be reconciled with a theory of law that seeks to get beyond blind respect for the past?