Published February 16, 2016
As the nation grieves the passing of a great jurist, I suspect many of us at MOJ have been thinking about the precise contours of Justice Scalia’s towering contribution to statutory and constitutional interpretation. I’ve found myself reviewing the philosophical and technical differences in Scalia and Thomas’ views, and I have been happy to see pieces like this that throw out political categories to celebrate Scalia’s achievement for the rule of law.
Mary Ann Glendon’s comment on Scalia’s 1995 Tanner lectures at Princeton, published together (with comments from Gordon Wood, Laurence Tribe and Ronald Dworkin) in A Matter of Interpretation in 1997, is well worth reading, as a comparatist complement to Scalia’s foundational lectures. Glendon republished her comment in the magnificent collection of some of her writings, Traditions in Turmoil. (I couldn’t find Glendon’s comment online but here is Scalia’s lecture.)
The issue at hand in Scalia’s celebrated lecture (over two days) was looking at how American lawyers trained almost exclusively in the great common law tradition (at the very least, in the first year of law school) would have the necessary habits of mind to properly interpret statutes (and, well, the Constitution). Scalia reminds us that common law judges performed two functions: applying the law to the facts and making the law [or, depending on your cast of mind, discovering the law according to the dictates of reason]. This, of course, requires resolving the particular dispute at bar by discerning the applicable legal/common law principle, distinguishing this case from prior cases (or not), and applying stare decisis. This is a very different practice from the work of the lawyer or judge in the civil law system (e.g., Germanic) “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.”
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, what every newborn American lawyer, first sees when he opens his eyes. And the impression remains with him for life. His image of the great judge- the Holmes, the Cardozo – is the man (or woman) who has the intelligence to know what is the best rule of law to govern 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 his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches his 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 and on.
And then, Scalia writes: “All of this would be an unqualified good, were it not for a trend in government that has developed in recent centuries, called democracy.” !! Scalia describes the tension between common law judging (“making law”) and separation of powers in the new era of statutes. And then:
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. We live in an age of legislation, and most new law is statutory 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.
He then offers his robust and deeply influential view of statutory (and constitutional) interpretation as a way to fill the “sad” void of having had “no intelligible theory of what [American judges] do most.” (“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 law school 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.”)
Glendon’s comparatist comment runs a bit deeper into the historical comparison between the training and habits of the American lawyer in common law and those trained in the civil law, describing both the greater ease with which continental lawyers and judges have taken on constitutional interpretation due to their civil law habits of mind and the way in which those legal traditions could advance our own view of statutory/constitutional interpretation.
When civil lawyers come to American law schools for graduate work, they often express surprise at the degree to which the case method dominates our approach to courses based on enacted law. In particular they find it hard to understand why constitutional law cases and materials typically begin not with the study of the language and design of the Constitution but with a case (usually Marbury v. Madison).
Her suggestion for studying the Constitution in law school, drawn from continental canons of interpretation, will now be quite familiar to anyone who has read Michael Stokes Paulsen’s superb book, The Constitution: An Introduction.
One trait that most conspicuously differentiates the Bundesverfassungsgericht’s [German Constitutional Court] decisions from those of the American Supreme Court…is the practice of attending consistently to the language and structure of the entire Constitution–to the document as a whole, and to the relationship of particular provisions to one another as well as to the overall design for government….
Up to thirty years ago [now fifty years ago, as this was written in 1997], the typical constitutional law course was heavy on federalism, separation of powers, but light on the Bill of Rights. The obvious remedy would have been to teach the whole Constitution from preamble to last amendment–as a design for self-government as well as a charter of rights, and as a texts whose parts cannot be understood in isolation from one another.
For both Scalia and Glendon, the stakes in properly studying and interpreting both statutes and the Constitution are high: as Glendon puts it, “one of the most basic American rights is the freedom to govern ourselves and our communities by bargaining, education, persuasion, and yes, majority vote.” Coming to Scalia’s defense on this particular point (as many criticized his views as “vulgar majoritarianism”), Glendon concludes her comment:
[I]s tyranny of the majority really the greatest danger that faces a country when its courts foreclose ordinary politics in one area after another –and when more and more decisionmaking power over the details of everyday life is concentrated in large private and public bureaucracies? Which is more likely: that unruly majorities will have their way, or that the democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few take rise? Whom should we fear more: an aroused populace, or the vanguard who know better than the people what the people should want?
Tyranny, as Tocqueville warned, need not announce itself with guns and trumpets. It may come softly–so softly that we will barely notice when we become one of those countries where there are no citizens, but only subjects. So softly that if a well-meaning foreigner should suggest, “Perhaps you could do something about your oppression,” we might look up, puzzled, and ask, “What oppression?”
Erika Bachiochi is a visiting fellow at the Ethics and Public Policy Center.