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«THE TANNER LECTURES ON HUMAN VALUES Delivered at Princeton University March 8 and 9, 1995 ANTONIN SCALIA is Associate Justice of the United States ...»

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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 the English system, 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 Federalist no. 47. Consider the compatibility of what James 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 control, for the judge would then be the legislator.”2 I do not suggest that Madison was saying that common-law lawmaking violated the separation of powers. H e wrote in an era when the prevailing image of the common law was that of a preexisting body The Federalist no. 47, at 326 (James Madison) (ed. Jacob E. Cooke, 1961;

emphasis in original). The reference is to Montesquieu, The Spirit of Laws (trans.

Thomas Nugent, 1949), vol. 1, 152.

86 The Tanner Lectures on Human Values 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 lawcodification 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.3 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 Robert Rantoul, Oration at Scituate (July 7, 1836), in Kermit L. Hall et al., American Legal History (1991), 317, 317-18.

Common-Law Courts in a Civil-Law System [SCALIA] 87 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. H e 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.4 The nineteenth-century codification movement espoused by Rantoul and Field was, as you may know, generally opposed by the bar, and hence did not achieve substantial success, except in one field: civil procedure, the law governing the trial of civil cases.

(I have always found it curious, by the way, that the only field in which lawyers and judges were willing to abandon judicial lawmaking was a field important to nobody except litigants, lawyers, and judges. Civil procedure used to be the only statutory course one studied in first-year law school.) Today, generally speaking, the old private-law fields -contracts, torts, property, trusts and estates, family law -remain firmly within the control of state common-law courts. Indeed, it is probably true that in these fields judicial lawmaking can be more freewheeling than ever, since the doctrine of stare decisis has appreciably eroded. Prior decisions that even the cleverest mind cannot distinguish can nowadays simply be overruled.

I have led you through this discussion not to urge that we scrape away the common law as a barnacle on the hull of democracy. I would be no more successful in that endeavor than David Dudley Field. No, I am content to leave the common law, and the process of developing the common law, where it is. It has proven to be a good method of developing the law in many fields -and Ibid., 318.

The Tanner Lectures on Human Values perhaps the very best method. An argument can be made that development of the bulk of private law by judges (an elite class “far removed from the people,” as described by Madison) 5 is a desirable limitation upon popular democracy. Or as the point was more delicately put in the late nineteenth century by James C. Carter of New York, one of the ardent opponents of Field’s codification projects: “the question is whether growth, development and improvement of the law” should “remain under the guidance of men selected by the people on account of their special qualifications for the work” (i.e., judges) or “be transferred to a numerous legislative body, disqualified by the nature of their duties for the discharge of this supreme function?” 6 But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge -the mindset that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”-is appropriate for most of the work that I do, and much of the work that state judges do. W e live in an age of legislation, and most new law is statutory law. As one legal historian has put it, in modern times “the main business of government, and therefore of law, [is] legislative and executive....

Even private law, so-called, [has been] turning statutory. The lion’s share of the norms and rules that actually govern[ ] the country [come] out of Congress and the legislatures.... The rules of the countless administrative agencies [are] themselves an important, even crucial, source of law.” This is particularly true in the federal courts, where, with a qualification so small it does not bear mentioning, there is no such thing as common law. Every issue of law I resolve as a federal judge is an interpretation of text -the text of a regulation, or of a statute, or of the Constitution. Let me put the Constitution to one side for the time being.

T h e Federalist no. 49, at 341 (ed. Jacob E. Cooke, 1961).

James C. Carter, T h e Proposed Codification o f Our Common Law (1884), 8 7.

Lawrence M. Friedman, A History of American Law (1973), 590.

Common-Law Courts in a Civil-Law System [SCALIA] 89 There are many who believe that that document is in effect a charter for judges to develop an evolving common law of freedom of speech, of protections against unreasonable searches and seizures, etc. I think that is wrong -indeed, as I shall discuss later, I think it frustrates the whole purpose of a written constitution. But we need not pause to debate that point now, since constitutional adjudication forms a relatively small portion of most judges’ work.

Indeed, even in the Supreme Court of the United States, I would estimate that something less than a fifth of the issues we confront are constitutional issues -and probably less than a twentieth if one excludes criminal-law cases. The vast majority of what I do is to interpret the meaning of federal statutes and of federal agency regulations. Thus, the subject of statutory interpretation deserves study and attention in its own right, as the principal business of lawyers and judges. It will not do to treat the enterprise as simply an inconvenient modern add-on to the judges’ primary role of common-law lawmaking. Indeed, attacking the enterprise with the Mr. Fix-it mentality of the common-law judge is a sure recipe for incompetence and usurpation.

The state of the science of statutory interpretation in American law is accurately described by Professors Henry Hart and Albert

Sacks (or by Professors William Eskridge and Philip Frickey, editors of the famous often-taught-but-never-published Hart-Sachs materials on the legal process) as follows:

Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.8 Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process (ed. William N.

–  –  –

Surely this is a sad commentary: W e American judges have no intelligible theory of what we do most.

Even sadder, however, is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory. Whereas legal scholarship has been at pains to rationalize the common law -to devise the best rules governing contracts, torts, and so forth- it has been seemingly agnostic as to whether there is even any such thing as good or bad rules of statutory interpretation. There are few lawschool courses on the subject, and certainly no required ones; the science of interpretation (if it is a science) is left to be picked up piecemeal, by reading cases (good and bad) in substantive fields that are largely statutory, such as securities law, natural resources law, and employment law.

There is to my knowledge only one treatise on statutory interpretation that purports to treat that subject in a systematic and comprehensive fashion -compared with about six or so on the substantive field of contracts alone. That treatise is J. G. Sutherland’s Statutes and Statutory Construction, first published in 1891, and updated by various editors since, now embracing some eight volumes. As its size alone indicates, it is one of those lawbooks that functions primarily not as a teacher or advisor, but as a litigator’s research tool and expert witness -to say, and to lead you to cases that say, why the statute should be interpreted the way your client wants. Despite the fact that statutory interpretation has increased enormously in importance, it is one of the few fields where we have a drought rather than a glut of treatises -fewer than we had fifty years ago, and many fewer than a century ago.

The last such treatise, other than Sutherland’s, was Professor Earl T. Crawford’s one-volume work, The Construction of Statutes, published more than half a century ago (1940). Compare that with what was available in the last quarter or so of the nineteenth century, which had, in addition to Sutherland’s original 1891 treatise, A Handbook on the Construction and Interpretation of Common-Law Courts in a Civil-Law System [SCALIA] 91 the Laws by Henry Campbell Black (author of Black’s Law Dictionary), published in 1896; A Commentary on the Interpretation of Statutes by G. A. Endlich, published in 1888, an Americanized version of Sir Peter Maxwell’s 1875 English treatise on the subject; the 1882 Commentaries on the Written Laws and Their Interpretation by Joel Prentiss Bishop; the 1874 second edition of Theodore Sedgwick’s A Treatise on the Rules Which Govern the Interpretation and Construction of Statutory and Constitutional Law ;

and the 1871 Potter’s Dwarris on Statutes, an Americanized edition by Platt Potter of Sir Fortunatus Dwarris’s influential English work.

Statutory interpretation is such a broad subject that I do not expect to get very deeply into it in these lectures. But I do want to address a few aspects that are of particular interest to me, and I can begin at the most fundamental possible level. So utterly unformed is the American law of statutory interpretation that not only is its methodology unclear, but even its very objective is. So I put the basic question: What are we looking for when we construe a statute?

You will find it frequently said in judicial opinions of my court and others, that the judge’s objective in interpreting a statute is to give effect to “the intent of the legislature.” This principle, in one form or another, goes back at least as far as Blackstone. Unfortunately, it does not square with some of the (few) generally accepted concrete rules of statutory construction. One is the rule that when the text of a statute is clear, that is the end of the matter.

Why should that be so, if what the legislature intended, rather than what it said, is the object of our inquiry? In selecting the words of the statute, the legislature might have misspoken. Why not permit that to be demonstrated from the floor debates? Or indeed, why not accept, as proper material for the court to consider, later explanations by the legislators -a sworn affidavit signed by the majority of each house, for example, as to what they really meant?

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