Scalia and Democractic Theory:

I can't let a point that Justice Scalia makes in an otherwise very good article in First Things to go unchallenged. Scalia notes that the substantive common law -- those bodies including "the law of crimes, of torts, of agency, of contracts, of property, of family and inheritance" were entirely judge made. Or to put it in today's parlance, of judges "legislating from the bench."

This is one reason why I can't take the claim that "we don't want judges legislating from the bench, substituting their will for 'the people's' as expressed through the legislators" very seriously. See this article by Erwin Chemerinsky and Catherine Fisk where they note:

But every lawyer knows that judges make law—it's their job. In fact, law students learn in the first semester that almost all tort law (governing accidental injuries), contract law and property law are made by judges. Legislatures did not create these rules; judges did, and they continue to do so when they revise the rules over time.

So what's Scalia's response to this?:

But democracy has overtaken all that. Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people's representatives. Such a system is quite incompatible with the making (or the "finding") of law by judges—and most especially by unelected judges. Even in state courts, it is a rare case that does not involve interpretation of an enacted text. And federal courts have, since the decision of Erie R.R. v. Tomkins in 1939, completely abjured common-law powers except in a few limited fields such as admiralty; they do not pretend to have the power either to "find" or to "make" a law unevidenced by enacted text or (in cases coming within their diversity jurisdiction) by the text of state judicial decisions.

Scalia further complains about judges today inappropriately exercising powers as common law judges once did:

I have said that the contradictions do not exist in a system of enacted law properly applied, because there are means of converting democratically enacted law (or democratically ratified constitutional provisions) into a sort of common law prescribable by judges. We have done this with the federal Constitution. One such means is simply reading text to say what it does not say -- so that the assurance that no person shall be deprived of life, liberty, or property without due process of law becomes an assurance that fundamental liberties shall not be eliminated; of course, it is the judges who get to decide, in common-law fashion, what liberties are fundamental.

Another means consists of asserting that a text does not retain the meaning it had when it was adopted but, rather, changes meaning to conform with current practices, or current attitudes, or (as the Supreme Court has explicitly said with regard to the Eighth Amendment's proscription of cruel and unusual punishment) whatever a majority of the justices thinks best.

First, Scalia makes no convincing case that there is anything proper about elected legislators making rules that bind us, as opposed to judges. If you ask me, those common law judges came up with a much better set of rules than those that come from modern legislators. And while government administrations in power do indeed derive their legitimacy from "the consent of the governed," "the consent of the governed," in and of itself, cannot confer legal or moral legitimacy on substantive rules. Were that true, 51% of the less well off would be able to confiscate the wealth of the richer 49%. Or even worse, a majority could legislatively enact a genocidal holocaust into law, and hey, that's just "the will of the people as expressed though the legislative process."

It's further ironic that it's more often the right-wing who points out that technically we are not a "Democracy" but rather a Constitutional Republic. And as such, there are republican checks on the democratic process. Pure democracy is just mob rule and we don't want that. One of those checks is an independent judiciary that has the power to strike down laws. Another check is the fact that "the people" have little rule-making power themselves, as they would in direct democracy, but rather have to elect legislators who make rules.

Further, legislators themselves in particular, and government in general, expect courts to "legislate from the bench." It makes legislators' jobs much easier because they can write codes that tend to be more general and let courts "fill in the gaps," consistent with the general principles expressed in the statutes when specific cases and controversies arise.

It's true what Scalia says, that courts don't make the law from nothing as they did in the common law era, that they usually have an enacted text from which to start. But often that enacted text is very little (almost nothing).

Consider the 4-part fair use text, something written into the federal copyright statute, which was itself judge created in the common law:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

Now you tell me based on what you have read whether when I copy an article from Time Magazine and distribute it to my class, it's a fair use? Or how about when you tape record your favorite TV show? Or what about the VCR as a piece of technology itself? Or what about Napster/Grokster like technologies?

You can't derive any of those specific answers from the text, but someone has to tell us whether this is a fair use or not. Courts do. And when they do, they make law and create substantive legal norms from the bench.

We could do the same analysis with many other pieces of legislation, for instance, the Sherman Act, ("Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal") and the FTC Act ("Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful") are likewise notoriously vague. If you are a business and want to know what specific conduct is illegal under these pieces of legislation you'll have to look to more than just the text of the statutes but also the substantive norms created by courts in interpreting these statutes.

Now, legislators can put a stop such judicial rule making by creating such mind-numbingly detailed statutes that try to anticipate every specific case and controversy, and write them into the codes, that judges' hands are literally tied -- the answer has already been anticipated and written for them. And some European "civil code" (as opposed to "common law") nations do that. If we really thought there was something terribly wrong with judges rule making from the bench, we'd alter our system to look more like such European countries whose systems evolved without the common law.

Indeed, it's a characteristic feature of nations with a common law tradition, like the US, for judges to "fill the gaps" with more specific substantive rules when interpreting statutes or constitutions with many provisions written at a very broad level of generality.

I agree with Scalia that it's a bad idea for judges to misuse the text of the Constitution and create norms from an improper place, for instance the Due Process Clause of the Fourteenth Amendment. But much of which Scalia complains with "Substantive Due Process" could be done properly under other clauses, for instance, the "Privileges or Immunities Clause."

Finally, as far as clauses "chang[ing] meaning to conform with current practices, or current attitudes," I'll defer to the eminent Richard Posner:

Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforeseen changes, but it also creates the possibility of alternative interpretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies that judges have any right to exercise discretion.

[...]

Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly" or "Read me narrowly."*

And the Constitution certainly doesn't codify Justice Scalia's theory of jurisprudence.

*Richard Posner, Overcoming Law, pp. 233-4. In Chapter 8, hilariously entitled, "What Am I? A Potted Plant?"