[E]very good legal argument is cast in the form of a syllogism.

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Common wisdom has it that legal reasoning proceeds by analogy. this maxim is true in an important way, but it is nevertheless a misleading way to look at legal argument, and is probably responsible for many a poorly crafted and confusing argument.

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The analogies between the case at hand and the cases cited as precedent serve only the secondary function of supporting the premises of th[e] syllogism. thus, the analogy is not the argument; the syllogism is the argument.

James A. Gardner, Legal Argument: The Structure and Lanugage of Effective Advocacy (2d ed. 2007) §§ 1.4-1.5 (emphasis in original).

[W] hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in light of our whole experience and not merely in that of what was said a hundred years ago.

Missouri v. Holland, 252 U.S. 416, 433 (1920).

“[Black] would not admit that the child-labor decision [invalidating child-labor restrictions] was final. Instead, he said: ‘The Constitution is final,’ for six new members had come into the Court since 1918, and ‘no doctrine of stare decisis applies to opinions on constitutional interpretation.’ He expressed his basic conviction that constitutional interpretation was a product of the times in which men lived, and that ‘the tendency of today is to give a new and exalted emphasis to the more sacred right of human beings to enjoy health, happiness, and security justly theirs in proportion to their industry, frugality, energy and honesty.’”

John P. Frank, Mr. Justice Black: The Man and His Opinions (1948) at 90. Justice Black was an American original. Born in dirt poor Clay County Alabama and a one-time member of the KKK, he became a champion of civil liberties and civil rights, and a staunch supporter of FDR’s New Deal. A constitutional literalist who believed that the Bill of Rights applied in toto to the states (a minority view on the Supreme Court), he also refused to find a constitutionally protected right of privacy and opposed the concept of substantive due process. Although a literalist, he also believed that judges enjoyed a broad mandate to interpret the constitutional text to its maximum extent in light of changing times. The concepts of original intent or a frozen constitutional text were anathema to him.

Privatizing Democracy?

[F]ive right wing Supreme Court judges [in Citizens United v. Federal Election Commission] have now guaranteed that big corporations can spend unlimited funds on political advertising in any political election. In an opinion written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas, the Court overruled established precedent and declared dozens of national and state statutes unconstitutional….

The opinion announces and perpetuates a shallow, simplistic understanding of the First Amendment, one that actually undermines one of the most basic purposes of free speech, which is to protect democracy. The nerve of [Kennedy's] argument — that corporations must be treated like real people under the First Amendment — is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.

Kennedy’s opinion left Americans very little room to protect themselves against this further degradation of their democracy.

Ronald Dworkin, The “Devastating” Decision, New York Review of Books, Vol. LVII, No. 3, February 25, 2010, at 39.

It seems to me that just in the ratio that our newspapers increase, our morals decay. The more newspapers the worse morals. …

[T]he public opinion of a nation, is created in America by a horde of ignorant, self-complacent simpletons who failed at ditching and shoemaking and fetched up in journalism on their way to the poorhouse. I am personally acquainted with hundreds of journalists, and the opinion of the majority of them would not be worth tuppence in private…

I know from personal experience the proneness of journalists to lie. …

[T]hrough the absence of all wholesome restraint the newspaper has become in a large degree a national curse, and will probably damn the Republic yet.

Mark Twain, License of the Press, from Collected Tales, Sketches, Speeches, & Essays 1852-1890 (Library of America 1992) at p. 551. You’d have to substitute “cable news” for “newspaper” today.

The Lecture is an ancient device that lawyers use to coach their clients so that the client won’t quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn’t done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an artful device as old as the law itself, and one used constantly by some of the nicest and most ethical lawyers in the land. “Who, me? I didn’t tell him what to say,” the lawyer can later comfort himself. “I merely explained the law, see.” It is good practice to scowl and shrug here and add virtuously: “That’s my duty, isn’t it?”

Verily, the question, like expert lecturing, is unchallengeable.

John D. Voelker (writing as Robert Traver), Anatomy of a Murder [Franklin Library 1988] at p. 37-38.

Voelker (June 19, 1903–March 19, 1991) was Marquette County Prosecutor and later a judge of the Michigan Supreme Court. His second novel, Anatomy of a Murder, was based on a real-life murder and became a best seller in 1958. The 1959 movie, directed by Otto Preminger and starring Jimmy Stewart and George C. Scott, is considered one of the best legal movies of all time.

It is easier to say what loyalty is not than what it is. It is not conformity. It is not passive acquiescence to the status quo. It is not preference for everything American over everything foreign. It is not an ostrich-like ignorance of the other countries and other institutions. It is not the indulgence in ceremony — a flag salute, an oath of allegiance, a fervid verbal declaration. It is not a particular creed, a particular vision of history, a particular body of economic practices, a particular philosophy.

It is a tradition, an ideal, and a principle. It is a willingness to subordinate every private advantage for the larger good. It is an appreciation of the rich and diverse contributions that can come from the most varied sources. It is allegiance to the traditions that have guided our great statesmen and inspired our most eloquent poets — the traditions of freedom, equality, democracy, tolerance, and the tradition of Higher Law, of experimentation, cooperation, and pluralism. It is the realization that America was born of revolt, flourished on dissent, became great through experimentation.

Henry Steele Commager, “Who is Loyal to America”, Harper’s Magazine (1947), quoted in Lapham, Gag Rule (2004) at 13-14. Commager’s article is available online (as reprinted in Freedom, Loyalty, Dissent (Oxford 1954)) here.

We all know that something is eternal. And it ain’t houses and it ain’t names, and it ain’t earth, and it ain’t even the stars … everybody knows in their bones that something is eternal, and that something has to do with human beings. All the greatest people ever lived have been telling us that for five thousand years and yet you’d be surprised how people are always losing hold of it. There’s something way down deep that’s eternal about every human being.

Thornton Wilder, Our Town, from 3 Plays (Perennial Classics 1998) at pp. 90-91.

In contrast with the ratio decidendi is the obiter dictum. The latter is a mere saying by the way, a chance remark, which is not binding upon future courts, though it may be respected according to the reputation of the judge, the eminence of the court, and the circumstances in which it came to be pronounced. An example would be a rule of law stated merely by way of analogy or illustration, or a suggested rule upon which a decision is not finally rested. The reason for not regarding an obiter dictum as binding is that it was probably made without a full consideration of the cases on the point, and that, if very broad in its terms, it was probably made without a full consideration of all the consequences that may follow from it; or the judge may not have expressed a concluded opinion.

Glanville Williams, Learning the Law (11th ed. 1982) at 77-78. Glanville Llewelyn Williams QC, LL.D., F.B.A. (15 February 1911 – 10 April 1997) was an influential Welsh legal professor and formerly the Rouse Ball Professor of English Law at the University of Cambridge. His book Learning the Law is something like an English Bramble Bush.

“The best thing for being sad,” replied Merlin, beginning to puff and blow, “is to learn something. That’s the only thing that never fails. You may grow old and trembling in your anatomies, you may lie awake at night listening to the disorder of your veins, you may miss your only love, you may see the world about you devastated by evil lunatics, or know your honor trampled in the sewers of baser minds. There is only one thing for it then — to learn. Learn why the world wags and what wags it. That is the only thing which the mind can never exhaust, never alienate, never be tortured by, never fear or distrust, and never dream of regretting. Learning is the only thing for you. Look what a lot of things there are to learn…”

T. H. White, The Once and Future King at 136.