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Narrated by Christopher Grove
Antonin ScaliaUnabridged — 6 hours, 10 minutes
Narrated by Christopher Grove
Antonin ScaliaUnabridged — 6 hours, 10 minutes
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Love him or hate him (it's hard to imagine a neutral opinion), Scalia is a briliant and engaging writer. This tantalizing short debate with his equally brilliant critics shows just how radical our most conservative justice is.
How should judges interpret statutory and constitutional law? Gutmann (politics, Princeton; Democracy and Disagreement, LJ 12/15/96) has edited an admirable work focusing on the relationship of the federal courts in interpreting the law. Supreme Court Justice Scalia's essay elaborates on his philosophy of textualism, an approach that eschews legislative intention in favor of focusing on the original meaning of the text to be interpreted. He applies this principle to constitutional law, arguing that we should concentrate on the Constitution's original meaning. Following this essay are brief comments by noted legal scholars Ronald Dworkin, Mary Ann Glendon, Lawrence Tribe, and Gordon Wood. It's deceptively easy to simplify Justice Scalia's ideas to a single sentence, as Gutmann does in her preface: "laws mean what they actually say, not what legislators intended them to say but did not write into the law's text." But the debates over the manner of interpreting legal texts have been held since the very beginning of our constitutional government. This collection certainly isn't the final word, but it offers an excellent starting place. For academic collections.-Jerry E. Stephens, U.S. Court of Appeals Lib., Oklahoma City
Readers of THE LAW AND POLITICS BOOK REVIEW may have noticed that THE NEW YORK TIMES BOOK REVIEW'S recent "Hit Parade" of books published by university presses included Justice Scalia's book (June 15, 1997, page 39). A MATTER OF INTERPRETATION apparently ranks with such distinguished tomes as THE CHICAGO MANUAL OF STYLE and Norman Davies' EUROPE: A HISTORY. Does it deserve such high esteem? I think not. The reasons should become clear in the review that follows. Invited to deliver the Tanner Lectures at Princeton University, Justice Scalia took the opportunity to describe the merits of his preferred method of constitutional interpretation-textualism-and to condemn approaches based on the intent of the Framers and an evolving Constitution. Scalia's essay, "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws," actually comprises only forty-seven pages-a bit less than a third of the book. The remainder of the volume consists of comments from Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, and Ronald Dworkin; the Justice's response provides a conclusion. The manner in which Scalia presents his argument that textualism is neither simplistic nor result-oriented, but logically consistent and rigorous, in fact, the only correct approach to interpreting the Constitution conveys his confidence that all reasonable readers will find the merits of his approach to be beyond question. Scalia eases into his argument with a discussion of the common law-not really common or customary law at all, he notes-and its uncomfortable relationship with democracy. Proceeding to an explanation of the problem of statutory interpretation, he reveals what he sees as the fundamental error of searching for the intent of the legislature. In Scalia's view, not only is legislative intent inconsistent with the principle that, "It is the law that governs, not the intent of the lawgiver" (page 17), but relying on legislative intent makes it too easy for judges to mold the law to fit their own preferences. Thus, "The practical threat is that, under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field" (pages 17-18). That discussion sets the stage for Scalia to present textualism as the obviously correct approach to interpreting statutes and the Constitution. Textualism purportedly limits judicial discretion, holding judges to the law. Consequently, for Scalia, textualism is the only approach to both statutory and constitutional interpretation that is faithful to the principles of democracy. Indeed, he suggests that we will embrace textualism if we believe that judges "have no authority to pursue those broader purposes [for which a statute could be designed] or write those new laws [that the times require]"(page 23). The confidence with which Scalia answers the question of how the Constitution should be interpreted" is grounded on the familiar assertion that officials who have not been elected should not invalidate or even modify the policies made by the elected branches of government. Only on the rare occasion when a policy in obviously in violation of an explicit constitutional provision is the judiciary justified in taking action. Most readers are likely to notice a number of flaws and inconsistencies in Scalia's argument. Perhaps Political Scientists will object that the will of the majority does not always prevail in legislative decision-making and that policies made by elected officials have been known to controvert democracy. Scalia does not address such issues, however. Indeed, a list of decisions to which he objects includes some in which the Court struck down legislation that interfered with the democratic process. For example, he notes that "a few things that formerly could be done or not done, as the society desired, but now cannot be done" include the following. "[E]lecting one of the two houses of a state legislature.on a basis that does not give all voters numerically equal representation" (REYNOLDS V SIMS, 1964) and "imposing property requirements as a condition of voting" (KRAMER V UNION FREE SCHOOL DISTRICT, 1969) (pages 41-42). Scalia seems to conceive the Constitution as a set of rules that protect democracy, which he views simply as majority decision-making by legislative bodies. He does not explain, however, how the text of the Constitution supports that view. Indeed, provisions in the Bill of Rights supply textual support for a very different view of the Constitution: an aspirational document that protects fundamental rights against unreasonable majorities. Moreover, his concluding remarks raise questions about his commitment to the majoritarianism that seemingly forms the basis of his entire argument. While he laments the dominance of the evolutionist approach or "The Living Constitution, a `morphing' document that means, from age to age, what it ought to mean" (page 47), he does not refer at this point, to the counter-majoritarian problem. Instead, he contends that the politicization of the judicial selection process has inevitably accompanied the rise of the changing Constitution. Consequently, if the courts are going to change the Constitution, they will do so in the way the majority wants: "This, of course, is the end of Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority." The reader is left to wonder what it is that Justice Scalia fears about the evolving Constitution? Is it the threat of excessive power in the hands of an elite group of non-elected judges who are not responsible to the people? Or is it the danger of the tyranny of the majority? Laurence Tribe and Ronald Dworkin have provided critiques that are based on arguments they have published previously. Although there are no real surprises in their essays, they manage not only to bring a number of inconsistencies in Scalia's argument to the reader's attention but to add considerably more than the Justice's essay does to our awareness of the complex nature of constitutional interpretation. Tribe, for example, demonstrates that "Scalia is by no means always faithful to his approach" (page 66): The Justice maintains that textualism leads to the conclusion that the Constitution does not prohibit the death penalty. Indeed, he finds support for capital punishment in the Grand Jury Clause of the Fifth Amendment (no person shall be held to answer for a capital crime without grand jury indictment), and in the Due Process Clauses of the Fifth and Fourteenth Amendments (prohibiting deprivation of life without due process of law). Tribe points out that in order for Scalia's conclusion to follow from his textual evidence, he must rely on the expectation of the writers and ratifiers of the Constitution that the death penalty would never qualify as cruel and unusual punishment prohibited by the Eighth Amendment. Yet Scalia has made it clear that expectations of the Framers should not be considered in interpreting the Constitution as only the text's meaning is properly part of an interpreter's inquiry. Additionally, to Tribe the Justice's votes in the flag burning and hate speech cases suggest that "he has in fact.been guided by a conception of the First Amendment that embodies.a set of principles whose understanding may evolve over time" (page 81). Tribe notes that there is nothing in the text of the document that proclaims the Constitution's text to be the sole point of reference. Further, he notes, "even if there were, the question of how the text's meaning is to be ascertained would remain unanswered" (page 78). By underlining the complexities of the issues surrounding constitutional interpretation and by revealing inconsistencies in Scalia's argument, Tribe raises serious questions about Scalia's textualism. Dworkin is perhaps even more effective than Tribe in pointing out the inconsistencies in Scalia's argument. Dworkin uses the distinction between "semantic originalism," which holds that the rights-granting clauses must be read to say what those who made them intended to say, and "expectation originalism" which requires those clauses to have the consequences that those who made them expected them to have. Scalia's explanation of his textualism indicates that he is a semantic-originalist, yet he sometimes acts more like an expectation-originalist. For example, his insistence that the view that capital punishment is unconstitutional is obviously preposterous is consistent with expectation originalism. Dworkin also points out that what Scalia calls the "morphing" theory of the Constitution, which he insists is the dominant interpretive approach, is not only "hardly even intelligible.[but] no prominent contemporary judge or scholar.holds anything like it" (page 122). Indeed, according to Dworkin, the approach referred to as "The Living Constitution" is more accurately understood as endorsing the view that "key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules" (page 122). That is a view that Scalia, if he were genuinely a semantic-originalist, might be expected to hold himself. It should not be surprising that Scalia disagrees with virtually all of both Tribe's and Dworkin's criticisms. Although he provides some clarifications and even reformulates some of his argument to minimize the force of their objections, his response amounts to little more than, "I disagree with you". Despite his confidence in the correctness of his interpretive philosophy, Scalia's argument does not hold up under scrutiny. I look forward to reading Richard Brisbin's JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL in the hope that it will shed more light on the motivations that drive the Justice's decision-making than Scalia's own explanation offers.
Supreme Court Justice Scalia posits his views of how statutes and the Constitution should be interpreted; a noted historian and three distinguished legal scholars respond.
Scalia, whom journalistic shorthand often renders the intellectual leader of the Court's right wing, sets forth the principles of what he calls "textualism" and others call "original intent." To reduce a complex and subtle argument to a sentence, he believes that judges should discern a law's import from the words in which it is stated, not from divining the legislative intent behind its passage or interpreting the text through analysis of its historical context; he finds the application of common-law adjudicature to constitutional issues a threat to democracy. Apart from Mary Ann Glendon, who contributes a rather dry comparison of the techniques of statutory interpretation in European civil-law countries with those derived from our common-law traditions, the replies take exception to Scalia's method. Glendon's Harvard Law School colleague Laurence Tribe lauds Scalia's insistence on a close reading of statutory texts but contends that specific constitutional language must be studied "in light of the Constitution as a whole and the history of its interpretation"; he doubts that any set of "rules" for constitutional exegesis is possible. Ronald Dworkin, of New York University Law School, finds textualism inadequate for constitutional analysis because "key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules." Brown University historian Gordon Wood disputes Scalia's contention that judges only recently began usurping authority from elected legislatures. Although all of the authors write clearly, it is unlikely that anyone not fairly well versed in constitutional law will fully grasp their arguments.
A small but worthwhile addition to the literature.
"[We] are lucky to have, in book form, an essay on legal interpretation by Justice Scalia....[He] projects a sanguine humor through a robust prose enlivened by sly sallies against what he sees as the gaps in logic of the opposing camp. He is anything but the angry justice of popular myth."—-John O. McGinnis, Wall Street Journal
"[T]he Supreme Court's highest-profile conservative . . . Suggest[s] we ought to junk judicial review as we have known it. . . . The reason, I think, is that Scalia objects not merely to certain decisions of this or prior Courts but to judicial review, American-style, in its entirety. His central aim as a jurist has been to get the federal courts out of the business of adjudicating individual rights."—-Garrett Epps, The Nation
"As this . . . book makes clear, Scalia deserves respect for having redefined the mainstream of constitutional discourse, and in a substantially useful way."—-Jeffrey Rosen, New Republic
"Justice Scalia merits praise for the clarity with which he writes and for the careful thought that underlies his writing."—-Walter Barthold, New York Law Journal
"Love him or hate him (it's hard to imagine a neutral opinion), Scalia is a brilliant and engaging writer. This tantalizing short debate with his equally brilliant critics shows just how radical our most conservative justice is."—-Kathleen Kahn, San Francisco Chronicle
"Justice Scalia's well-written and patiently explained theory, augmented and challenged by the commentaries of four scholars, will fascinate and enlighten even those readers, and they are many, whom it does not convince. . . . Justice Scalia merits praise for the clarity with which he writes and for the careful thought that underlies his writing."—-Walter Barthold, The Lawyer's Bookshelf
"Antonin Scalia. . . confronts four high-powered critics in a short book for the general public—perhaps the first time a sitting justice of the Supreme Court has done so. This is a book for anyone with a serious interest in law and the Constitution."—-Carl M. Dibble, Detroit News
"As the most intellectually consistent and stylistically gifted member of the Supreme Court, Scalia has never hidden his enthusiasm for the American tradition of mistrusting courts and lawyers. The basics of his judicial philosophy are now usefully collated into this volume. . . . Scalia's arguments have shaped the debate in our time; he has gone a long way toward changing how judges interpret the letter of the law."—-David Franklin, Slate
"[Scalia] is formidably persuasive, by turns seductive, fierce, funny, charming—and always brilliant."—-Paul Reidinger, American Bar Association Journal
"A Matter of Interpretation demonstrates both the attraction of Scalia's 'textualist' theory and his qualities as a judicial statesman. . . [His] elegant essay, the most concise and accessible presentation of his views, argues eloquently that judicial authority can only be based on the statutory or constitutional text."—-Michael Greve, Reason
"An essential volume."—-Noah Feldman, Bloomberg View
A Matter of Interpretation demonstrates both the attraction of Scalia's 'textualist' theory and his qualities as a judicial statesman. . . [His] elegant essay, the most concise and accessible presentation of his views, argues eloquently that judicial authority can only be based on the statutory or constitutional text.
[Scalia] is formidably persuasive, by turns seductive, fierce, funny, charming—and always brilliant.
As the most intellectually consistent and stylistically gifted member of the Supreme Court, Scalia has never hidden his enthusiasm for the American tradition of mistrusting courts and lawyers. The basics of his judicial philosophy are now usefully collated into this volume. . . . Scalia's arguments have shaped the debate in our time; he has gone a long way toward changing how judges interpret the letter of the law.
As this . . . book makes clear, Scalia deserves respect for having redefined the mainstream of constitutional discourse, and in a substantially useful way.
Antonin Scalia. . . confronts four high-powered critics in a short book for the general public—perhaps the first time a sitting justice of the Supreme Court has done so. This is a book for anyone with a serious interest in law and the Constitution.
. . . the Supreme Court's highest-profile conservative . . . suggest[s] we ought to junk judicial review as we have known it. . . . The reason, I think, is that Scalia objects not merely to certain decisions of this or prior Courts but to judicial review, American-style, in its entirety. His central aim as a jurist has been to get the federal courts out of the business of adjudicating individual rights.
Justice Scalia's well-written and patiently explained theory, augmented and challenged by the commentaries of four scholars, will fascinate and enlighten even those readers, and they are many, whom it does not convince. . . . Justice Scalia merits praise for the clarity with which he writes and for the careful thought that underlies his writing.
Love him or hate him (it's hard to imagine a neutral opinion), Scalia is a brilliant and engaging writer. This tantalizing short debate with his equally brilliant critics shows just how radical our most conservative justice is.
[We] are lucky to have, in book form, an essay on legal interpretation by Justice Scalia....[He] projects a sanguine humor through a robust prose enlivened by sly sallies against what he sees as the gaps in logic of the opposing camp. He is anything but the angry justice of popular myth.
A Matter of Interpretation demonstrates both the attraction of Scalia's 'textualist' theory and his qualities as a judicial statesman. . . [His] elegant essay, the most concise and accessible presentation of his views, argues eloquently that judicial authority can only be based on the statutory or constitutional text.
— Michael Greve
[Scalia] is formidably persuasive, by turns seductive, fierce, funny, charming—and always brilliant.
— Paul Reidinger
As the most intellectually consistent and stylistically gifted member of the Supreme Court, Scalia has never hidden his enthusiasm for the American tradition of mistrusting courts and lawyers. The basics of his judicial philosophy are now usefully collated into this volume. . . . Scalia's arguments have shaped the debate in our time; he has gone a long way toward changing how judges interpret the letter of the law.
— David Franklin
As this . . . book makes clear, Scalia deserves respect for having redefined the mainstream of constitutional discourse, and in a substantially useful way.
— Jeffrey Rosen
Antonin Scalia. . . confronts four high-powered critics in a short book for the general public—perhaps the first time a sitting justice of the Supreme Court has done so. This is a book for anyone with a serious interest in law and the Constitution.
— Carl M. Dibble
. . . the Supreme Court's highest-profile conservative . . . suggest[s] we ought to junk judicial review as we have known it. . . . The reason, I think, is that Scalia objects not merely to certain decisions of this or prior Courts but to judicial review, American-style, in its entirety. His central aim as a jurist has been to get the federal courts out of the business of adjudicating individual rights.
— Garrett Epps
Justice Scalia's well-written and patiently explained theory, augmented and challenged by the commentaries of four scholars, will fascinate and enlighten even those readers, and they are many, whom it does not convince. . . . Justice Scalia merits praise for the clarity with which he writes and for the careful thought that underlies his writing.
— Walter Barthold
[We] are lucky to have, in book form, an essay on legal interpretation by Justice Scalia....[He] projects a sanguine humor through a robust prose enlivened by sly sallies against what he sees as the gaps in logic of the opposing camp. He is anything but the angry justice of popular myth.
— John O. McGinnis
| BN ID: | 2940176179552 |
|---|---|
| Publisher: | Tantor Audio |
| Publication date: | 05/26/2020 |
| Series: | The University Center for Human Values Series |
| Edition description: | Unabridged |
| Sales rank: | 942,305 |
CHAPTER 1
Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws
*
ANTONIN SCALIA
THE FOLLOWING essay attempts to explain the current neglected state of the science of construing legal texts, and offers a few suggestions for improvement. It is addressed not just to lawyers but to all thoughtful Americans who share our national obsession with the law.
THE COMMON LAW
The first year of law school makes an enormous impact upon the mind. Many students remark upon the phenomenon. They experience a sort of intellectual rebirth, the acquisition of a whole new mode of perceiving and thinking. Thereafter, even if they do not yet know much law, they do — as the expression goes — "think like a lawyer."
The overwhelming majority of the courses taught in that first year, and surely the ones that have the most profound effect, teach the substance, and the methodology, of the common law — torts, for example; contracts; property; criminal law. American lawyers cut their teeth upon the common law. To understand what an effect that must have, you must appreciate that the common law is not really common law, except insofar as judges can be regarded as common. That is to say, it is not "customary law," or a reflection of the people's practices, but is rather law developed by the judges. Perhaps in the very infancy of Anglo-Saxon law it could have been thought that the courts were mere expositors of generally accepted social practices; and certainly, even in the full maturity of the common law, a well-established commercial or social practice could form the basis for a court's decision. But from an early time — as early as the Year Books, which record English judicial decisions from the end of the thirteenth century to the beginning of the sixteenth — any equivalence between custom and common law had ceased to exist, except in the sense that the doctrine of stare decisis rendered prior judicial decisions "custom." The issues coming before the courts involved, more and more, refined questions to which customary practice provided no answer.
Oliver Wendell Holmes's influential book The Common Law — which is still suggested reading for entering law students — talks a little bit about Germanic and early English custom. But mostly it talks about individual court decisions, and about the judges, famous and obscure, who wrote them: Chief Justice Choke, Doderidge, J., Lord Holt, Redfield, C.J., Rolle, C.J., Hankford, J., Baron Parke, Lord Ellenborough, Peryam, C.B., Brett, J., Cockburn, C.J., Popham, C.J., Hyde, C.J., and on and on and on. Holmes's book is a paean to reason, and to the men who brought that faculty to bear in order to create Anglo-American law.
This is the image of the law — the common law — to which an aspiring American lawyer is first exposed, even if he has not read Holmes over the previous summer as he was supposed to. He learns the law, not by reading statutes that promulgate it or treatises that summarize it, but rather by studying the judicial opinions that invented it. This is the famous case-law method, pioneered by Harvard Law School in the last century, and brought to movies and TV by the redoubtable Professor Kingsfield of Love Story and The Paper Chase. The student is directed to read a series of cases, set forth in a text called a "casebook," designed to show how the law developed. In the field of contracts, for example, he reads, and discusses in class, the famous old case of Hadley v. Baxendale, decided a century and a half ago by the English Court of Exchequer: A mill in Gloucester ground to a halt (so to speak) because of a cracked crankshaft. To get a new one made, it was necessary to send the old one, as a model, to the manufacturer of the mill's steam engine, in Greenwich. The miller sent one of his workers to a carrier's office to see how long the delivery would take; the worker told the carrier's clerk that the mill was stopped, and that the shaft must be sent immediately. The clerk replied that if the shaft was received by noon, it would be delivered the next day. The miller presented the shaft to the carrier before noon the next day and paid the fee to have it transported; but because of the carrier's neglect it was delivered several days late, with the result that several additional days passed before the mill got back into service. The miller sought, as damages for breach of the shipping contract, his lost profits for those days, which were of course many times what the carrier had received as the shipping charge. The carrier said that he was not liable for such remote consequences.
Now this was a fairly subtle and refined point of law. As was the case with most legal points that became the subject of litigation, it could not really be said that there existed a general practice that the court could impose as common, customary law. The court decided, essentially, that the carrier was right, laying down the very important rule, that in a suit for breach of contract not all damages suffered because of the breach can be recovered, but only those that "could have been fairly and reasonably contemplated by both the parties when they made [the] contract." The opinion contains some policy reasons for that result, citation of a few earlier opinions by English courts, and citation of not a single snippet of statutory law — though counsel arguing the case did bring to the court's attention the disposition set forth in the French Civil Code. For there was no relevant English statutory law; contract law was almost entirely the creation and domain of English judges.
I must interject at this point that even according to the new rule — that only reasonably foreseeable damages are recoverable — the miller rather than the carrier should have won the case. The court's opinion simply overlooks the fact that the carrier was informed that the mill was stopped; it must have been quite clear to the carrier's clerk that restarting the mill was the reason for the haste, and that profits would be lost while the mill was idle. But if you think it is terribly important that the case came out wrong, you miss the point of the common law. In the grand scheme of things, whether the right party won is really secondary. Famous old cases are famous, you see, not because they came out right, but because the rule of law they announced was the intelligent one. Common-law courts performed two functions: One was to apply the law to the facts. All adjudicators — French judges, arbitrators, even baseball umpires and football referees — do that. But the second function, and the more important one, was to make the law.
If you were sitting in on Professor Kingsfield's class when Hadley v. Baxendale was the assigned reading, you would find that the class discussion would not end with the mere description and dissection of the opinion. Various "hypotheticals" would be proposed by the crusty (yet, under it all, good-hearted) old professor, testing the validity and the sufficiency of the "foreseeability" rule. What if, for example, you are a blacksmith, and a young knight rides up on a horse that has thrown a shoe. He tells you he is returning to his ancestral estate, Blackacre, which he must reach that very evening to claim his inheritance, or else it will go to his wicked, no-good cousin, the sheriff of Nottingham. You contract to put on a new shoe, for the going rate of three farthings. The shoe is defective, or is badly shod, the horse goes lame, and the knight reaches Blackacre too late. Are you really liable for the full amount of his inheritance? Is it reasonable to impose that degree of liability for three farthings? Would not the parties have set a different price if liability of that amount had been contemplated? Ought there not to be, in other words, some limiting principle to damages beyond mere foreseeability? Indeed, might not that principle — call it presumed assumption of risk — explain why Hadley v. Baxendale reached the right result after all, though not for the precise reason it assigned?
What intellectual fun all of this is! It explains why first-year law school is so exhilarating: because it consists of playing common-law judge, which in turn consists of playing king — devising, out of the brilliance of one's own mind, those laws that ought to govern mankind. How exciting! And no wonder so many law students, having drunk at this intoxicating well, aspire for the rest of their lives to be judges!
Besides the ability to think about, and devise, the "best" legal rule, there is another skill imparted in the first year of law school that is essential to the making of a good common-law judge. It is the technique of what is called "distinguishing" cases. That is a necessary skill, because an absolute prerequisite to common-law lawmaking is the doctrine of stare decisis — that is, the principle that a decision made in one case will be followed in the next. Quite obviously, without such a principle common-law courts would not be making any "law"; they would just be resolving the particular dispute before them. It is the requirement that future courts adhere to the principle underlying a judicial decision which causes that decision to be a legal rule. (There is no such requirement in the civil-law system, where it is the text of the law rather than any prior judicial interpretation of that text which is authoritative. Prior judicial opinions are consulted for their persuasive effect, much as academic commentary would be; but they are not binding.)
Within such a precedent-bound common-law system, it is critical for the lawyer, or the judge, to establish whether the case at hand falls within a principle that has already been decided. Hence the technique — or the art, or the game — of "distinguishing" earlier cases. It is an art or a game, rather than a science, because what constitutes the "holding" of an earlier case is not well defined and can be adjusted to suit the occasion. At its broadest, the holding of a case can be said to be the analytical principle that produced the judgment — in Hadley v. Baxendale, for example, the principle that damages for breach of contract must be foreseeable. In the narrowest sense, however (and courts will squint narrowly when they wish to avoid an earlier decision), the holding of a case cannot go beyond the facts that were before the court. Assume, for example, that a painter contracts with me to paint my house green and paints it instead a god-awful puce. And assume that not I, but my neighbor, sues the painter for this breach of contract. The court would dismiss the suit on the ground that (in legal terminology) there was no "privity of contract": the contract was between the painter and me, not between the painter and my neighbor. Assume, however, a later case in which a company contracts with me to repair my home computer; it does a bad job, and as a consequence my wife loses valuable files she has stored in the computer. She sues the computer company. Now the broad rationale of the earlier case (no suit will lie where there is no privity of contract) would dictate dismissal of this complaint as well. But a good common-law lawyer would argue, and some good common-law judges have held, that that rationale does not extend to this new fact situation, in which the breach of a contract relating to something used in the home harms a family member, though not the one who made the contract. The earlier case, in other words, is "distinguishable."
It should be apparent that by reason of the doctrine of stare decisis, as limited by the principle I have just described, the common law grew in a peculiar fashion — rather like a Scrabble board. No rule of decision previously announced could be erased, but qualifications could be added to it. The first case lays on the board: "No liability for breach of contractual duty without privity"; the next player adds "unless injured party is member of household." And the game continues.
As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, every newborn American lawyer, first sees when he opens his eyes. And the impression remains for life. His image of the great judge — the Holmes, the Cardozo — is the man (or woman) who has the intelligence to discern the best rule of law for the case at hand and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule: distinguishing one prior case on the left, straight-arming another one on the right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal — good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on.
DEMOCRATIC LEGISLATION
All of this would be an unqualified good, were it not for a trend in government that has developed in recent centuries, called democracy. In most countries, judges are no longer agents of the king, for there are no kings. In England, I suppose they can be regarded as in a sense agents of the legislature, since the Supreme Court of England is theoretically the House of Lords. That was once the system in the American colonies as well; the legislature of Massachusetts is still honorifically called the General Court of Massachusetts. But the highest body of Massachusetts judges is called the Supreme Judicial Court, because at about the time of the founding of our federal republic this country embraced the governmental principle of separation of powers. That doctrine is praised, as the cornerstone of the proposed federal Constitution, in The Federalist No. 47. Consider the compatibility of what Madison says in that number with the ancient system of lawmaking by judges. Madison quotes Montesquieu (approvingly) as follows: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator." I do not suggest that Madison was saying that common-law lawmaking violated the separation of powers. He wrote in an era when the prevailing image of the common law was that of a preexisting body of rules, uniform throughout the nation (rather than different from state to state), that judges merely "discovered" rather than created. It is only in this century, with the rise of legal realism, that we came to acknowledge that judges in fact "make" the common law, and that each state has its own.
I do suggest, however, that once we have taken this realistic view of what common-law courts do, the uncomfortable relationship of common-law lawmaking to democracy (if not to the technical doctrine of the separation of powers) becomes apparent. Indeed, that was evident to many even before legal realism carried the day. It was one of the principal motivations behind the law-codification movement of the nineteenth century, associated most prominently with the name of David Dudley Field, but espoused by many other avid reformers as well. Consider what one of them, Robert Rantoul, had to say in a Fourth-of-July address in Scituate, Massachusetts, in 1836:
Judge-made law is ex post facto law, and therefore unjust. An act is not forbidden by the statute law, but it becomes void by judicial construction. The legislature could not effect this, for the Constitution forbids it. The judiciary shall not usurp legislative power, says the Bill of Rights: yet it not only usurps, but runs riot beyond the confines of legislative power.
Judge-made law is special legislation. The judge is human, and feels the bias which the coloring of the particular case gives. If he wishes to decide the next case differently, he has only to distinguish, and thereby make a new law. The legislature must act on general views, and prescribe at once for a whole class of cases.
This is just by way of getting warmed up. Rantoul continues, after observing that the common law "has been called the perfection of human reason":
The Common Law is the perfection of human reason, — just as alcohol is the perfection of sugar. The subtle spirit of the Common Law is reason double distilled, till what was wholesome and nutritive becomes rank poison. Reason is sweet and pleasant to the unsophisticated intellect; but this sublimated perversion of reason bewilders, and perplexes, and plunges its victims into mazes of error.
The judge makes law, by extorting from precedents something which they do not contain. He extends his precedents, which were themselves the extension of others, till, by this accommodating principle, a whole system of law is built up without the authority or interference of the legislator.
(Continues…)
Excerpted from "A Matter of Intepretation"
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