Here is more to help you understand who Gordon Wood is.
GOPcap: Is it my turn to water the plant, or yours?
[cr #807 to GOPcap] Do you know who Gordon Wood is?
Answer: A history professor.
This is very distinguished legal company, and I confess to wondering about my qualifications to be a commentator on Justice Scalia's paper. I do not seem to have too many of them. I have never been to law school, so I have not experienced that intellectual rebirth which Justice Scalia says every first-year law school student experiences. I am not a jurist. I am not a legal philosopher. I am not even a legal or constitutional historian. I am just a plain eighteenth-century American historian who happens to have written something on the origins of the Constitution. I am not sure that this suffices.
Source: Gordon Wood, from his essay which appears in A Matter of Interpretation, Federal Courts and the Law, by Antonin Scalia, 1997, p. 49.
THAT IS GORDON WOOD.
[nc] Do you know who Antonin Scalia is?
Answer: A Supreme Court justice.
In A Matter of Interpretation, Federal Courts and the Law, by Antonin Scalia, 1997, Scalia provided his essay on interpreting the Constitition and the laws to Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, and Ronald Dworkin for their critical review. Scalia provided a short response to the reviews. Below is the response of Justice Antonin Scalia to the comments of history Professor Gordon S. Wood.
PROFESSOR WOODIn Professor Wood's scholarly presentation, the principal point with which I take issue is his assertion that in the English legal system statutes "had to make sense in terms of the rest of the common law," i.e., that there was an inherent judicial power to ignore statutory law. Professor Wood accepts as orthodoxy Lord Chief Justice Coke's statement in Dr. Bonham's case (1610) that "in many cases, the common law will controul Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it and adjudge such Act to be void." [1] It was not orthodoxy at all, but an extravagant assertion of judicial power, scantily supported by the authorities cited, [2] vehemently criticized by contemporaries, [3] and seemingly abandoned by Coke himself in his Institutes. [4] As Professor J. H. Baker describes it, "[l]ittle more was heard in England of judicial review of statutes, and Coke's doctrine of 1610 was whittled down into a presumption to be applied only where a statute was ambiguous or in need of qualification by necessary implication." [5] The genuine orthodoxy is set forth in Blackstone:
I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. [6]The record does not, I think, support Professor Wood's belief that Blackstone was setting forth a new, eighteenth-century doctrine, spawned by "the emergence ... of the idea of parliamentary sovereignty and the positivist conception of law." Blackstone was not new; Dr. Bonham's case was eccentric. I agree with Profesor Wood's contention that English judges claimed "to have the capacity to interpret and construe parliamentary statutes in such a way as to fit them into the entire legal structure." My essay acknowledges (and indeed insists) that modern American judges have the same capacity (see pp. 16-17). But construing statutory ambiguities to be harmonious with the common law is quite different from ignoring plain texts that contradict the "right and reason" of the common law. The quotation from Blackstone suggests another point on which I disagree with Professor Wood. From the premise that "[t]he sharp distinction we recognize between legislation and adjudication is a modern one," he concludes that "there are very good deeply rooted historical reasons why statutory construction in both England and America has involved a good deal of judicial common-law type interpretation." I am sure what he means by his premise is not that the inherent difference between legislation and adjudication has been recognized only in modern times (Aristotle saw it quite clearly); [7] but rather that appreciation of the desirability of separating the adjudicative function from the legislative one is a modern development (modern, that is, as historians rather than journalists use the term, whereby Montesquieu is modern). I suppose that is correct. In this country, colonial legislatures often sat as courts and rendered their decrees in laws. [8] But while legislatures regularly adjudicated, I am not aware of any evidence that adjudicative tribunals (the Supreme Judicial Court of Massachusetts, for example, as opposed to the General Court, which is its legislature) felt free to legislate—that is, to change or depart from statutory law in the course of promulgating their adjudicative degrees. To the contrary, it was accepted (Lord Chief Justice Coke in Dr. Bonham's case notwithstanding) that courts were in principle bound by statutory enactments.
This is not to say that I take issue with Professor Wood's conclusion that the problem of judicial rewriting of democratically adopted texts is "deeply rooted in our history" and that "judges have exercised that sort of presumably undemocratic authority from the very beginning." To acknowledge that is simply to acknowledge that there have always been, as there undoubtedly always will be, willful judges who bend the law to their wishes. But acknowledging evil is one thing, and embracing it is something else. It seems to me that Professor Wood neglects that distinction when he surmises that "the enhanced judicial discretion and judicial lawmaking of the past three or four decades represents a change in degree, not one in kind." There has been a change in kind, I think, not just in degree, when the willful judge no longer has to go about his business in the dark-- when it is publicly proclaimed, and taught in the law schools, that judges ought to make the statutes and the Constitution say what they think best.
Professor Wood thinks that textualism, as I have described it, is "as permissive and as open to arbitrary judicial discretion and expansion as the use of legislative intent or other interpretative methods, if the text-minded judge is so inclined." I do not agree. No textualist-originalist interpretation that passes the laugh test could, for example, extract from the United States Constitution the prohibition of capital punishment that three nontextualist justices have discovered, or the prohibition of abortion laws that a majority of the Court has found. Moreover, the judge who uses "legislative intent or other interpretative methods" does not entirely abandon text, but rather adds to whatever manipulability text contains the (much greater) manipulability of his ex-tratextual methodology. I concede, of course, that textualism is no ironclad protection against the judge who wishes to impose his will, but it is some protection. The criterion of "legislative intent," by contrast, positively invites the judge to impose his will; by setting him off in search of what does not exist (there is almost never any genuine legislative intent on the narrow point at issue), it reduces him to guessing that the legislature intended what was most reasonable, which ordinarily coincides with what the judge himself thinks best. Other nontextual methodologies are similarly wish-fulfilling.
Finally, I may respond to Professor Wood's disheartening perception that what I have addressed -- the proclivity of our judges to function like legislators -- is, after all, "only an aspect of the problem that we Americans have with our judges, possibly more a manifestation of the problem than a cause of it." Every issue, I suppose, is "only an aspect" of some other one -- the problem we Americans have with our judges, for example, being only an aspect of the problem we Americans have with our government, which in turn is only an aspect of the problem we Americans have with life. But whether life-tenured judges are free to revise statutes and constitutions adopted by the people and their representatives is not merely -- as Professor Wood describes it -- a question of some "importance," but a question utterly central to the existence of democratic government. Professor Wood is perhaps correct that the problem I have discussed is only a "manifestation" of a more fundamental ill; again, most things are. But whereas I do not know whether that more fundamental ill is treatable (or indeed even what it is), I am sure that we can induce judges, as we have induced presidents and generals, to stay within their proper governmental sphere.
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[1] Dr. Bonham's Case, 8 Co. Rep. 114a, 118a, 77 Eng. Rep. 646,652 (K.B. 1610).
[2] See Theodore F. T. Plucknett, Bonham's Case and Judicial Review, 40 Harv. L.Rev. 30, 35-48 (1926).
[3] Id. at 49-52.
[4] Edward Coke, The Fourth Part of the Institutes of the Laws of England 37, 41 (photo, reprint 1979) (London: M. Flesher 1628). See also J. H. Baker, An Intro duction to English Legal History 242 (3d ed. 1990).
[5] Baker, supra note 4, at 242.
[6] 1 William Blackstone, Commentaries on the Laws of England 91 (photo, reprint 1979) (1765).
[7] See Aristotle, Nichomachean Ethics, in 2 The Complete Works of Aristotle 1795-96 (Jonathan Barnes ed., 1984).
[8] See the discussion of this point in Plaut v. Spendthrift Farm, Inc., 115 S.Ct.1447,1453-56 (1995).
Why do you think Justice Scalia chose the persons he did to review his essay?
acknowledging evil is one thing, and embracing it is something else. It seems to me that Professor Wood neglects that distinction when he surmises that "the enhanced judicial discretion and judicial lawmaking of the past three or four decades represents a change in degree, not one in kind." There has been a change in kind, I think, not just in degree, when the willful judge no longer has to go about his business in the dark-- when it is publicly proclaimed, and taught in the law schools, that judges ought to make the statutes and the Constitution say what they think best.
Not only is Wood a pessimist about the American Revolution and its purposes (which, btw, would seem to put him at odds with the proclaimed purposes of the same Declaration of Independence for which our interlocutors continually proclaim as the fons et origo of the American compacted society), and a detractor of democratic republicanism, but Justice Scalia now locates him for us in the crowd of wilful "living Constitution" circus acts that legal positivism has begotten.