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Ms. Anna Williams quotes some interesting observations from noted scholars in her recent post on “The Common Law and the Constitution.” Yet an important counter-point from Justice Scalia’s 1998 essay A Matter of Interpretation highlights what happened in between the common law’s heyday and today that might provide some reluctance to rely on “common law judging”:  the creation of American democracy.

To make the point clear, as Justice Scalia did years ago, it’s important to appreciate the distinction between the judging of “common law judges” and the judging required by the Constitution.

In a common law system, the judge’s task is to “discover” the law—meaning that he develops rules from certain principles and precedents, extrapolating the factual circumstances of a given case into broader notions of sound public policy (“the law”). From this view of proper adjudication, it’s perfectly appropriate to rely on what Professor Stoner suggests, “natural law or the law of reason,” in order to “discover” the right result. Professor McGinnis’s quoted observation sums up the common law quest succinctly: to “discover good social norms.”

Our Constitution, however, does not task our judges with “discovering” the law or crafting the right result in accordance with “natural law or the law of reason.” Unlike the English common law system from which America derived, the U.S. Constitution confines the power to make (or “discover,” if you will) law, and the power to interpret it to the legislative and judicial branches, respectively. This separation is intentional. In Federalist #47, James Madison emphasized the centrality of separating legislative and judicial power in preserving self-rule when he quoted Montesquieu as saying: “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 .”

The Constitution’s separation of powers is also distinct from our English common law heritage in that this requirement is itself codified by the democratic process—the American people voted to approve a fundamental law, the Constitution, that in turn provides them and their representatives the sole power to continue to make law via statutes. This does not completely preclude the common law concept of judging, but it certainly foreshadows a broader nineteenth century (and continuing) effort to make what was once done by judges—the development of law—done by legislatures. Resulting from this development is the legislative codification of previously judge-made rules in the areas of criminal law, property law, contract law, and other fields.

The implications of our Constitution’s separated powers scheme—and the fact that the Constitution is itself a statute similar to other legislative codifications except in that it is our country’s fundamental law—are significant when it comes to constitutional interpretation.

While Professor Stoner may want to rely on “natural law or the law of reason” to interpret the Constitution, the Constitution is not natural law. It is a law itself, with its own words, phrases, and grammatical syntax that contain a certain meaning when read as they would be reasonably understood to those people that enacted its respective provisions into law. The common law enterprise of juxtaposing the given facts of a case to broader notions of public policy, or natural law as Professors Stoner and Arkes would seem to have it, in order to derive a sound legal rule is simply not relevant to the inquiry of using the dictionary, rules of grammar, and other mechanisms conventionally used to understand writing. As Chief Justice John Marshall said in Ogden v. Saunders in 1827, the judge is left only to:

Say that the intention of the instrument [the U.S. Constitution] must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers.

To Justice Marshall, these considerations are “all that can be necessary” for a judge, as any other consideration would exceed the judicial power. Thus, were a legislator, or an individual person, to consult natural law or the law of reason in making law, there would be no quarrel as the legislative power within the Constitution proscribes no such limit on that use. Whereas, the Constitution’s judicial power is an interpretive power, and were a judge to rely on natural law or the law of reason rather than the textual meaning of a given statutory or Constitutional provision—and further, have as his quest the discovery of “good social norms” rather than the meaning of a legal text—they would be doing exactly what Alexander Hamilton warned against in Federalist #78:  substituting “their pleasure to that of the legislative body.” The same is true when dealing with a garden variety statute adopted by the people through their representatives.

The reluctance Professor McGinnis points out in employing common law in constitutional interpretation points to some genuine problems, but they are deeper than judges being unlikely to “discover good social norms” because of a changed legal culture. If our “social norms” and “legal culture” are distinct from that of the Founding generation, and, for example, a judge was tasked with deriving the meaning of a constitutional provision that did not derive from the Founding generation, why would it be that the Founding generation’s “social norms” ought to be “discovered” and imposed onto that provision anyway? Why a text’s meaning be cast aside simply because it embodies values distinct from the “social norms” of the Founding generation and representative of the generation that adopted it? How would such an adjudicative approach not undermine the Article V amendment process?

The alternative, where a judge would be able to cast aside a constitutional provision’s original meaning in exchange for “discover[ing] good social norms,” is the type of adjudication that makes Professor McGinnis’s other critique so strong: that the Supreme Court is our nation’s court of last resort and thus, save the extraordinary case of a constitutional amendment or crisis through a branch of government ignoring the Court’s ruling, is the final arbiter of what a given constitutional provision means. The Framers created a constitution designed to preserve self-rule, and outsourcing the discovery of good social norms to a branch with so little accountability compared to the other two hardly seems consistent with the judicial power was it was understood in Article III and described above. Accordingly, giving them the power to “discover good social norms” is not simply the pragmatic problem of today’s legal culture not identifying as good of norms as the Founding’s, but rather a doctrinal problem because it is outside the realm of the judicial power afforded to the Court via the Constitution.

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