for similar reasons, there is no obvious way to ascertain how the current generation would like to modify the Act The failure of the sunset solution has two important lessons, however One is that the core of Jeffersons principle is not affected: even if a mandatory sunset is not the solution, the problem of one generation ruling another remains. The second is that the interpretation of laws should not change abruptly. Not only to generations not change abruptly, but the work of a previous generation does not leave the scene when it does; changes that generation has brought about in the culture will remain. "Historic continuity with the past is not a duty; it is merely a necessity. 9 Both the common law and the common ground arguments try to meet these requirements: they preserve the work of the past, but only to the extent that it either must, unavoidably, or should be preserved, and while permitting gradual adaptation Common law The common law method, roughly speaking, justifies legal decisions by relying on previous decisions. Those decisions can be judicial decisions, but they need not be. Many important constitutional issues, such as those arising between the President and Congress, are seldom litigated in court In disputes over the scope of the President,s power to commit troops abroad or to withhold documents from Congress-disputes that arise frequently but have never been finally decided by the Supreme Court-past practice mes 10
10 for similar reasons, there is no obvious way to ascertain how the current generation would like to modify the Act. The failure of the sunset solution has two important lessons, however. One is that the core of Jefferson’s principle is not affected: even if a mandatory sunset is not the solution, the problem of one generation ruling another remains. The second is that the interpretation of laws should not change abruptly. Not only to generations not change abruptly, but the work of a previous generation does not leave the scene when it does; changes that generation has brought about in the culture will remain. “Historic continuity with the past is not a duty; it is merely a necessity.”9 Both the common law and the common ground arguments try to meet these requirements: they preserve the work of the past, but only to the extent that it either must, unavoidably, or should be preserved, and while permitting gradual adaptation. Common law The common law method, roughly speaking, justifies legal decisions by relying on previous decisions. Those decisions can be judicial decisions, but they need not be. Many important constitutional issues, such as those arising between the President and Congress, are seldom litigated in court. In disputes over the scope of the President’s power to commit troops abroad or to withhold documents from Congress—disputes that arise frequently but have never been finally decided by the Supreme Court—past practice 9Holmes?
plays a crucial role. The use of the Watergate precedent in the recent impeachment debate is another example Of course it is not obvious in theory and often not clear in practice what it means to follow a precedent. Just as important, a central feature of the common law method is that rules derived from precedents need not always be followed. They can be modified or even overruled in order to make them better as a matter of morality or policy. This is a familiar aspect of the common law: precedent controls in a general way, but in determining what precedents require, or how far they are to be extended or cut back, or whether they are to be overruled entirely, inevitably requires one to make judgments of morality or social policy. Cardozo gave this description, in the twentieth centurys best account of the common law method: The final cause of law is the welfare of society. The rule that misses its aim cannot nently justify its existence.. I do not mean,of course, that judges are commissioned to set aside existing ules at pleasure in favor of any other set of rules which they may hold to be expedient or wise. I mean that when they are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance. 10 Because it is based on precedent, the common law approach might be thought to be beholden to the past, and therefore, at first glance, might seem especially subject to Jeffersons objection. Paine,s principal target was not written constitutions but the kind of traditionalism that has an affinity to the common law approach; his bete noir was Burke, who borrowed extensively from the common lawyers But in fact the common law approach is, if anything, relatively well-suited to resist Jeffersons argument. 10Benjamin N. Cardozo, The Nature of the Judicial Process 66-67 (Yale Univ Pres 1921)
11 plays a crucial role. The use of the Watergate precedent in the recent impeachment debate is another example. Of course it is not obvious in theory, and often not clear in practice, what it means to follow a precedent. Just as important, a central feature of the common law method is that rules derived from precedents need not always be followed. They can be modified or even overruled in order to make them better as a matter of morality or policy. This is a familiar aspect of the common law: precedent controls in a general way, but in determining what precedents require, or how far they are to be extended or cut back, or whether they are to be overruled entirely, inevitably requires one to make judgments of morality or social policy. Cardozo gave this description, in the twentieth century’s best account of the common law method: The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence. . . . I do not mean, of course, that judges are commissioned to set aside existing rules at pleasure in favor of any other set of rules which they may hold to be expedient or wise. I mean that when they are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance.10 Because it is based on precedent, the common law approach might be thought to be beholden to the past, and therefore, at first glance, might seem especially subject to Jefferson’s objection. Paine’s principal target was not written constitutions but the kind of traditionalism that has an affinity to the common law approach; his bete noir was Burke, who borrowed extensively from the common lawyers. But in fact the common law approach is, if anything, relatively well-suited to resist Jefferson’s argument. 10Benjamin N. Cardozo, The Nature of the Judicial Process 66-67 (Yale Univ. Press 1921)
For one thing, the practice of following precedent can be justified in fully functional terms, without relying on a controversial conception of national identity or intergenerational obligation. The most familiar justification is derived from Burke(although there is much else going on in Burke as well). In modern terms, the basis of this justification is that human rationality is bounded. The problems confronted by the legal system are complex and multi-faceted; an individual's capacity to solve them limited It therefore makes sense to take seriously what has been done before, both because it may reflect an accumulation of wisdom that is not available to any one individual and because it provides a storehouse of trial- and-error information on how the problems might be solved It would be a mistake, though, to think of the common law approach as necessarily relying on a particular, Burkean, ideology. The core of the common law approach is that one builds on what has been done before, discarding it when reflection suggests that it is wrong but only after according it a presumption of correctness. This approach has deep epistemic roots, and one need not be a Burkean conservative, in any form, to accept it. William James, for example, offered an account that even echoes Burke's metaphors: The individual has a stock of old opinions already, but he meets a new experience that puts them to a strain. Somebody contradicts them; or in a reflective moment he discovers that they contradict each other; or he hears of facts with which they are incompatible; or desires arise in him which they cease to satisfy. The result is an inward trouble to which his mind till then had been a stranger, and from which he seeks to escape by modifying his previous mass of opinions. He saves as much of it as he can, for in this matter of belief we are all extreme conservatives. So he tries to change first this opinion, and then that (for they resist change very variously), until at 12
12 For one thing, the practice of following precedent can be justified in fully functional terms, without relying on a controversial conception of national identity or intergenerational obligation. The most familiar justification is derived from Burke (although there is much else going on in Burke as well). In modern terms, the basis of this justification is that human rationality is bounded. The problems confronted by the legal system are complex and multi-faceted; an individual’s capacity to solve them is limited. It therefore makes sense to take seriously what has been done before, both because it may reflect an accumulation of wisdom that is not available to any one individual and because it provides a storehouse of trialand-error information on how the problems might be solved. It would be a mistake, though, to think of the common law approach as necessarily relying on a particular, Burkean, ideology. The core of the common law approach is that one builds on what has been done before, discarding it when reflection suggests that it is wrong but only after according it a presumption of correctness. This approach has deep epistemic roots, and one need not be a Burkean conservative, in any form, to accept it. William James, for example, offered an account that even echoes Burke’s metaphors: The individual has a stock of old opinions already, but he meets a new experience that puts them to a strain. Somebody contradicts them; or in a reflective moment he discovers that they contradict each other; or he hears of facts with which they are incompatible; or desires arise in him which they cease to satisfy. The result is an inward trouble to which his mind till then had been a stranger, and from which he seeks to escape by modifying his previous mass of opinions. He saves as much of it as he can, for in this matter of belief we are all extreme conservatives. So he tries to change first this opinion, and then that (for they resist change very variously), until at
last some new idea comes up which he can graft upon the ancient stock with a minimum of disturbance to the latter ., 11 The same idea is found in Quines "maxim of minimum mutilitation "12 The common law approach-starting with"old opinions, "and building on them when, and to the extent that, they seem wrong--may reflect not just a familiar feature of our legal culture but something deep in human reason In any event, in the common law, every precedent can be reexamined and modified. Nothing from the past is automatically binding. In addition unlike Jeffersons sunset solution, which supposes that generations end abruptly, the common law approach parallels the gradual succession of generations. 13 This is obviously not a foolproof way of solving Jeffersons problem; like any ideal theory of how law should be made or a society governed, it has to grapple with institutional issues. Perhaps, if the objective is to keep in the law in touch with popular sentiment, the principal responsibility for applying common law principles under an enacted provision should rest with officials who are more accountable to the electorate than judges usually are. This may be the way to understand various doctrines of deference to administrative agencies in statutory interpretation In general, it will be very difficult to get a reliable empirical answer to the question of how much power unelected officials should have to enforce a constitution. Perhaps the most we can say is that in the American system, it seems settled that judges will play a prominent role, II What Pragmatism Means" 12Web of Belief? See Lisa vanAlstyne, Aristotle's Alleged Ethical Obscurantism, 73 Philosophy 429(1998), to which I am indebted, on these points 13In one of Jeffersons famous later letters, in which he again endorsed periodic revisions of the Constitution, his remarks even took on a common-law like tone, calling for"wisely yielding to the gradual change of circumstances"and"favoring progressive accommodation to progressive improvement. Letter of July 12, 1816 13
13 last some new idea comes up which he can graft upon the ancient stock with a minimum of disturbance to the latter. . .11 The same idea is found in Quine’s “maxim of minimum mutilitation.”12 The common law approach—starting with “old opinions,” and building on them when, and to the extent that, they seem wrong—may reflect not just a familiar feature of our legal culture but something deep in human reason. In any event, in the common law, every precedent can be reexamined and modified. Nothing from the past is automatically binding. In addition, unlike Jefferson’s sunset solution, which supposes that generations end abruptly, the common law approach parallels the gradual succession of generations.13 This is obviously not a foolproof way of solving Jefferson’s problem; like any ideal theory of how law should be made or a society governed, it has to grapple with institutional issues. Perhaps, if the objective is to keep in the law in touch with popular sentiment, the principal responsibility for applying common law principles under an enacted provision should rest with officials who are more accountable to the electorate than judges usually are. This may be the way to understand various doctrines of deference to administrative agencies in statutory interpretation. In general, it will be very difficult to get a reliable empirical answer to the question of how much power unelected officials should have to enforce a constitution. Perhaps the most we can say is that in the American system, it seems settled that judges will play a prominent role, 11“What Pragmatism Means” 12Web of Belief? See Lisa vanAlstyne, Aristotle’s Alleged Ethical Obscurantism, 73 Philosophy 429 (1998), to which I am indebted, on these points. 13In one of Jefferson’s famous later letters, in which he again endorsed periodic revisions of the Constitution, his remarks even took on a common-law like tone, calling for “wisely yielding to the gradual change of circumstances” and “favoring progressive accommodation to progressive improvement.” Letter of July 12, 1816
and that that it is not obvious that that apparently settled practice should be overthrown The common law approach might be challenged on a different ground it might be said that judges or any other officials who purport to follow a common law approach will be more likely to act out of self-interested or other improper motives than officials who simply try to follow the will of earlier generations. Perhaps the consequences of such self-interested action are so severe that we are better off having officials believe that they should allow the earlier generation to rule us 14 But that argument does not seem especially plausible. In principle the common law approach, unlike an approach that treats the decisions of earlier generations as permanently binding, provides at least a partial answer to Jeffersons objection Moreover, to the extent we are committed to having judges play a central role in enforcing the Constitution, it is a virtue of the common law approach that common law-unlike detailed historical investigation-is one thing that judges are trained to do. Constitutional law as a common law system For the most part our constitutional law has solved Jeffersons problem by becoming a common law system. In area after area, the law is determined by precedents. 15 The dispute in controverted cases is over the 14Scalia, Originalism In what follows I will discuss mostly constitutional law, although Jeffersons principle obviously applies to statutes too. I believe many of the things I say about the Constitution can also be said about statutory interpretation. The principal differences are statutes ore recent, and therefore the Austinian justification for obedience applies, with its implications for interpretation; and that much of the common law-like updating of statutes is done by administrators, not just by courts
14 and that that it is not obvious that that apparently settled practice should be overthrown. The common law approach might be challenged on a different ground: it might be said that judges or any other officials who purport to follow a common law approach will be more likely to act out of self-interested or other improper motives than officials who simply try to follow the will of earlier generations. Perhaps the consequences of such self-interested action are so severe that we are better off having officials believe that they should allow the earlier generation to rule us.14 But that argument does not seem especially plausible. In principle the common law approach, unlike an approach that treats the decisions of earlier generations as permanently binding, provides at least a partial answer to Jefferson’s objection. Moreover, to the extent we are committed to having judges play a central role in enforcing the Constitution, it is a virtue of the common law approach that common law—unlike detailed historical investigation—is one thing that judges are trained to do. Constitutional law as a common law system For the most part our constitutional law has solved Jefferson’s problem by becoming a common law system. In area after area, the law is determined by precedents.15 The dispute in controverted cases is over the 14Scalia, Originalism. 15In what follows I will discuss mostly constitutional law, although Jefferson’s principle obviously applies to statutes too. I believe many of the things I say about the Constitution can also be said about statutory interpretation. The principal differences are that many statutes are more recent, and therefore the Austinian justification for obedience applies, with its implications for interpretation; and that much of the common law-like updating of statutes is done by administrators, not just by courts