Law and Language (Scalia on the nature of law, great read)

First Things ^ | November 2005 | Antonin Scalia

[Cicero]

Although this is a book review, it is also a splendid essay on the state of law in America, where it came from, where it is going, and particularly the problems that confront us in a world without values, controlled by liberal judges and postmodernist law professors.

[bubman]

bump

[Cicero]

As one reaches the end of the book, after reading Vining’s just-short-of-theological imaginings followed by Smith’s acknowledgment of “richer realities and greater powers in the universe,” he (she?) is sorely tempted to leap up and cry out, “Say it, man! Say it! Say the G-word! G-G-G-G-

[Molly Pitcher]

Cool! Thanks for the post.

[Califelephant]

This made me laugh out loud:

The problem is not simply, as Smith thinks, that we cannot posit an adequate hypothetical author. It is that, even if we could, the law that would result would be a hypothetical law (whose violation would presumably be punishable by hypothetical incarceration).

[inquest]

Similarly, we have a practice of relying upon judicial precedent (so-called stare decisis), which is no less extensive post-Holmes than pre-Holmes. That made sense in a legal system that regarded judicial opinions as “evidence” of what “the law” is. It makes no sense in a legal system that regards the judicial opinion itself as “the law,” any more than it would make sense to bind today’s legislature to the laws adopted in the past.

Nails it there. There's a lot of confusion among even legal commentators about what judicial decisions are and are not. They keep referring to "the state of the law" when what they're really talking about is the state of judicial opinion. They're not the same.

[Cicero]

In the old days of Common Law, stare decisis really meant something. It was the law as it had been interpreted by numerous judges over hundreds of years. And that law, in turn, was based on divine law and common law.

Now, as you say, it means nothing but the latest judge's latest opinion. It's noticeable that liberals always plead stare decisis when it comes to their precious decisions like Roe v. Wade, but they ignore it when it comes to overturning hundreds of years of precedents in order to get with the program.

That's Scalia's point. In an age of arbitrary opinions, it means nothing any more.

[Cicero]

Thanks for the ping. Unfortunately I have no ping lists.

[Cicero]

Yes, indeed. I also liked this counter-example:

Try this hypothetical instead: Two persons who speak only English see sculpted in the desert sand the words “LEAVE HERE OR DIE.”

I suspect that the desert he is talking about although he pretends only to be proposing a "hypothetical," is an allegory for the present state of our legal culture, which is what T. S. Eliot would have called a Waste Land.

[inquest]

In the old days of Common Law, stare decisis really meant something. It was the law as it had been interpreted by numerous judges over hundreds of years. And that law, in turn, was based on divine law and common law.

And the need for it (at least on consitutional matters) has been largely obviated by the fact that we have a concise written Constitution, which anybody can refer to. Since past judicial decisions are, as Scalia says, evidence of the law, and are not the actual law itself, they're useful in determining unwritten common law. But they're not needed in determining the written Constitution that's sitting right in front of us, and was designed for the people to be able to understand.

[Cicero]

Exactly. As he points out, you don't need to know what the individual founders MEANT by the words of the Constitution, either, which is how "wall of separation" got dragged into the discussion. You only need to know what the words, phrases, and general ideas meant to an ordinary, educated person at that time.

So it does help to have some acquaintance with Common Law, Natural Law theory, John Locke, the Bible and the Ten Commandments, and a few other background matters that the Founders drew on and took for granted as part of their mental equipment. But you still go primarily by the words themselves.

[jdhljc169]

bump

[jdhljc169]

ping a ling

[bvw]

What allowance did the Federal Const make for federal districts and territories? Were they to be under the jurisprudence of some neighboring or assigned State law?

This is a fun essay and worthwhile to read for understanding ... yet Scalia fails at Schiavo. The Court, even bound by strict originalist Constructionism could have rescued her. No law set by man is greater than the basics of the Creator's Natural Law -- no State can legalize murder.

[inquest]

This is a fun essay and worthwhile to read for understanding ... yet Scalia fails at Schiavo. The Court, even bound by strict originalist Constructionism could have rescued her. No law set by man is greater than the basics of the Creator's Natural Law -- no State can legalize murder.

Except it's not the job of the court to uphold the Creator's Natural Law. Its job is to uphold the Constitution.

[bvw]

We disgree. Scalia dances in a bit to the mud in the middle of his essay on this too. No laws work long term in more than insane degree except those that hew to the Creator's Natural Laws as Judges, Legislators (and Juries) discover that law. (sidenotation: Juries are the part of common law the Justice S., and Author S., both seem to have left out of their intellectual loops.)

Yet Scalia and you both turn away from the heavens and tour the mud then so as to declare (ridiculously) that a Constitutionalist can ignore the very and most fundamental issues of Natural Law due to scope. That was not the intent of the Founders, certainly not in their time.

[inquest]

That was not the intent of the Founders, certainly not in their time.

The founders did not intend for federal judges to be reviewing state law for compatibility with divine law. If the drafters had announced any such intention, the document would never have been ratified.

[bvw]

You misunderstand the Founders then. I would reply more, maybe tomorrow or the next day. GTG.

[inquest]

If you do, be sure to include some quotes from them that would indicate what you say their view was of the scope of federal judicial authority.

[jwalsh07]

My favorite:

"This is an inconvenience, perhaps, but not a contradiction in a system that regards judicial opinions as mere “evidence” of “the law”; in a system in which the judicial opinion is the law it produces law that is virtually lawless."